Exhibit 10.28
LEASE BY AND BETWEEN
THE REALTY ASSOCIATES FUND IV, L.P.
and
NOOSH, INC.
of
THE HILLSITE BUILDING
75 SECOND AVENUE
NEEDHAM, MASSACHUSETTS 02192
DATED:
October _______, 1999
STANDARD OFFICE LEASE
1. Basic Lease Provisions.
1.1 Date: October ______, 1999
1.2 Landlord: The Realty Associates Fund IV, L.P.
1.3 Tenant: Noosh, Inc., a California corporation
1.4 Building Address: The building known as and numbered The Hillsite Building, 75 Second Avenue,
Needham, Massachusetts.
1.5 Suite Number(s): Suite 230
1.6 Rentable Area of Premises: Approximately 4,230 rentable square feet on the second floor of the Building.
1.7 Use: General office use, subject to the requirements and limitations contained in
Section 6.
1.8 Term: Three (3) years
1.9 Commencement Date: November 1, 1999
1.10 Monthly Base Rent and Tenant
Electricity Cost: Base Rent: $10,222.50 per month ($122,670.00 annually [($29.00 x 4,230])
Initial Tenant Electricity Cost: $4,653.00 per year / $387.75 per month ($1.10
x 4,230). See Section 4.1.
Initial Tenant Electricity Rate: $1.10 per rentable square foot. See Section
4.1.
1.11 Base Rent Paid Upon Execution: $10,222.50
Applied To: November 1, 1999
1.12 Security Deposit: $62,000.00
1.13 Tenant's Percentage Share: 4.0%
1.14 Base Years: a) Tax Base Year: Actual Fiscal Tax Year 2000
(July 1, 1990 - June 30, 2000).
b) Operating Cost Base Year: Actual Calendar Year 1999.
1.15 Number of Parking Spaces:
Unreserved: Tenant shall have the right to use the unreserved spaces in the parking areas
serving the building (including the adjacent parking garage) on a non-
exclusive, "as available" basis, provided, however, that Tenant shall not have
the right to use more than twelve (12) spaces in the parking garage.
1.16 Intentionally Deleted; Initial Monthly
Parking Rates.
1.17 Real Estate Broker:
Landlord: Insignia/ESG
One Financial Center
Boston, Massachusetts 02111
Attention: Andrew Majewski or Patrick Cavanagh
Tenant: Merideth & Grew
160 Federal Street
Boston, Massachusetts 02110
Attention: James Elcock
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1.18 Exhibits Attached to Lease: Exhibit A - "Premises"; Exhibit B -"Verification Letter"; Exhibit C -"Rules and
Regulations"; Exhibit D - "Letter of Credit"
1.19 Addresses for Notices:
Landlord: THE REALTY ASSOCIATES FUND IV, L.P.
c/o TA ASSOCIATES REALTY
28 State Street, 10th Floor
Boston, Massachusetts 02109
Attention: Ms. Janene P. Behler
With a Copy to: FINARD & COMPANY, INC.
3 Burlington Woods Drive
Burlington, Massachusetts 01803
Attention: Ms. Laura Vosburgh Marshall
Tenant: NOOSH, INC.
3401 Hillview Avenue, Building B
Palo Alto, California 94304
Attention: Ann Marie Cady
1.20 Interpretation. The Basic Lease Provisions shall be interpreted in
conjunction with all of the other terms and conditions of this Lease. Other
terms and conditions of this Lease modify and expand on the Basic Lease
Provisions. If there is a conflict between the Basic Lease Provisions and the
other terms and conditions of this Lease, the other terms and conditions shall
control.
2. Premises.
2.1 Lease of Premises and Definition of Project. The "Premises" shall
mean the area shown on Exhibit "A" to this Lease. Landlord hereby leases to
Tenant, and Tenant hereby leases from Landlord, upon all of the conditions set
forth herein the Premises, together with certain rights to the Common Areas as
hereinafter specified. The Premises shall not include an easement for light,
air or view. The building of which the Premises is a part (the "Building"), the
Common Areas (as defined below), the land upon which the same are located, along
with all other buildings and improvements thereon or thereunder, including all
parking facilities and the additional parking area covered by the ground lease
dated September 21, 1987 from HRC Tower Corp. to Gerald W. Blakey, Jr. and
Robert C. Linnell, Trustees of Hillsite Office Trust (a predecessor-in-interest
to the Landlord) during the term of said ground lease and any extensions or
amendments thereto, are herein collectively referred to as the "Project." The
additional parking area covered by the foregoing ground lease was, to the best
of Landlord's knowledge and belief, not necessary to comply with any applicable
ordinances or regulations at the time the Project was constructed.
2.2 Calculation of Size of Building and Premises. The number of rentable
square feet included within the Building has been calculated in accordance with
the methods of measuring rentable square feet, as that method is described in
the American National Institute Publication ANSI Z65.1-1996, as promulgated by
the Building Owners and Managers Association (the "BOMA Standard"). The number
of rentable square feet in the Premises has been calculated by measuring the
number of usable square feet within the Premises calculated in accordance with
the BOMA Standard and increasing the number of usable square feet by nineteen
percent (19%). If the rentable square feet in the Premises changes after this
Lease is executed by Landlord and Tenant, the Base Rent and any advance rent
shall be adjusted by multiplying the new number of rentable square feet in the
Premises by the per square foot rental obtained by dividing the Base Rent
initially set forth in section 1.10 by the number of rentable square feet
initially set forth in section 1.6. If the number of rentable square feet in
the Premises is changed, Tenant's Share shall be adjusted as provided in section
4.2(a).
2.3 Common Areas-Defined. The term "Common Areas" is defined as all areas
and facilities outside the Premises and within the exterior boundary line of the
Project that are designated by Landlord from time to time for the general non-
exclusive use of Landlord, Tenant and the other tenants of the Project and their
respective employees,
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suppliers, customers and invitees, including, but not limited to, common
entrances, lobbies, corridors, stairwells, public restrooms, elevators, parking
areas, loading and unloading areas, roadways and sidewalks. Landlord may also
designate other land and improvements outside the boundaries of the Project to
be a part of the Common Areas, provided that such other land and improvements
have a reasonable and functional relationship to the Project.
3. Term.
3.1 Term and Commencement Date. The term and Commencement Date of this
Lease are as specified in sections 1.8 and 1.9. The Commencement Date set forth
in section 1.9 is an estimated Commencement Date. Subject to the limitations
contained in this section 3, the actual Commencement Date shall be the date
possession of the Premises is tendered to Tenant in accordance with section 3.4
below; provided, however, that the term of this Lease shall be computed from the
first day of the calendar month following the Commencement Date. When the
actual Commencement Date is established by Landlord, Tenant shall, within
fifteen (15) days after Landlord's request, complete and execute the letter
attached hereto as Exhibit "B" and deliver it to Landlord. Tenant's failure to
execute the letter attached hereto as Exhibit "B" within said fifteen (15) day
period shall be a material default hereunder and shall constitute Tenant's
acknowledgment of the truth of the facts contained in the letter delivered by
Landlord to Tenant.
3.2 Delay in Possession. Notwithstanding the estimated Commencement Date
specified in section 1.9, if for any reason Landlord cannot deliver possession
of the Premises to Tenant on said date, Landlord shall not be subject to any
liability therefor, nor shall such failure affect the validity of this Lease or
the obligations of Tenant hereunder; provided, however, in such a case, Tenant
shall not be obligated to pay rent or perform any other obligation of Tenant
under this Lease, except as may be otherwise provided in this Lease, until
possession of the Premises is tendered to Tenant, as defined in section 3.4. If
Landlord shall not have tendered possession of the Premises to Tenant within
sixty (60) days following the estimated Commencement Date specified in section
1.9, as the same may be adjusted in accordance with section 3.3 or in accordance
with the terms of any work letter agreement entered into by Landlord and Tenant,
Tenant may, at Tenant's option, by notice in writing to Landlord within ten (10)
days after the expiration of the sixty (60) day period, terminate this Lease.
If Tenant terminates this Lease as provided in the preceding sentence, the
parties shall be discharged from all obligations hereunder, except that Landlord
shall return any money previously deposited with Landlord by Tenant. If
Landlord is unable to deliver possession of the Premises to Tenant on the
Commencement Date due to a "Force Majeure Event," the Commencement Date shall be
extended by the period of the delay caused by the Force Majeure Event. A Force
Majeure Event shall mean fire, earthquake, weather delays or other acts of God,
strikes, boycotts, war, riot, insurrection, embargoes, shortages of equipment,
labor or materials, delays in issuance of governmental permits or approvals, or
any other cause beyond the reasonable control of Landlord.
3.3 Landlord's Work; Tenant Delays. (i) Landlord's Work. Promptly
following the approval of the Plans and Specifications (as defined below),
Landlord shall, subject to Subsection (ii) below, substantially complete the
work shown thereon in accordance therewith ("Landlord's Work"). Landlord shall
perform and complete Landlord's Work in a good and workmanlike manner.
Landlord's Work shall be "substantially complete" when Landlord obtains a
certificate of occupancy for the Premises (which may be a temporary certificate
subject to completion of punch-list items or other reasonable evidence of
substantial completion as may be provided by the applicable municipal authority)
and all of Landlord's Work has been completed except for so-called "punch-list
items" which shall consist only of minor work or installations, the completion
of which will not materially interfere with Tenant's use and occupancy of the
Premises for the Permitted Uses. Landlord shall complete such punch-list items
as soon as practical. If the substantial completion of Landlord's Work shall be
delayed due to Tenant Delays (as hereinafter defined), the Lease Commencement
Date shall be deemed to have occurred on the date substantial completion would
have occurred but for such Tenant Delays. For the purposes hereof, "Tenant
Delays" shall mean any delay to Landlord's Work caused by Tenant or any of its
agents, employees or contractors, including without limitation, (A) failure to
promptly approve or comment on the Plans and Specifications, (B) delays caused
by changes, alterations or additions to the Plans and Specifications requested
by Tenant after its approval thereof or other change orders or modification
requested by Tenant during the progress of Landlord's Work, and (C) delays
caused by Tenant's interference with Landlord's Work. There shall be no
abatement of rent, and the sixty (60) day period specified in section 3.2 shall
be deemed extended, to the extent of any Tenant Delays. Landlord shall not be
liable to Tenant if the substantial completion of Landlord's Work is delayed as
a result of any Tenant Delays. Tenant shall pay to Landlord an amount equal to
one thirtieth (1/30th) of the Base Rent due for the first full calendar month of
the Lease term for each day of Tenant Delay. For purposes of the foregoing
calculation, the Base Rent payable for the first full calendar month of the term
of this Lease shall not be reduced by any abated rent, conditionally waived
rent, free rent or similar rental concessions, if any. Landlord and Tenant
agree that the foregoing payment constitutes a fair and reasonable estimate of
the damages Landlord will incur as the result of a Tenant Delay.
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Within thirty (30) days after Landlord tenders possession of the Premises to
Tenant, Landlord shall notify Tenant of Landlord's reasonable estimate of the
date Landlord could have delivered possession of the Premises to Tenant but for
the Tenant Delays. After delivery of said notice, Tenant shall immediately pay
to Landlord the amount described above for the period of Tenant Delay.
(ii) Payment Of Construction And Other Costs. Landlord shall pay the
costs and expenses incurred by Landlord in connection with the performance and
completion of Landlord's Work up to but not more than $50,760.00 [$12.00 x
4,230] (the "Improvement Allowance") which amount is included in the Base Rent
set forth in Section 1.10. Tenant shall be responsible for and shall pay
directly or reimburse Landlord for, as appropriate, and indemnify Landlord from
and against, any such costs in excess of the Improvement Allowance.
(iii) Space Planning. Landlord shall promptly deliver to Tenant for
Tenant's review and approval, all plans, designs and working drawings for the
completion of the Landlord's Work (the "Plans and Specifications"). Tenant
shall promptly review and either approve or comment on the Plans and
Specifications within three (3) business days following Tenant's receipt
thereof. Tenant's failure to approve or comment on the Plans and Specifications
shall be deemed an approval thereof. After Tenant's final approval of the Plans
and Specifications, Tenant shall not make any changes or revisions to the Plans
and Specifications without obtaining Landlord's prior written consent.
3.4 Tender of Possession. Possession of the Premises shall be deemed
tendered to Tenant when Landlord's architect or agent has determined that (a)
Landlord's Work is substantially completed, and, if necessary, have been
approved by the appropriate governmental entity, (b) the Project utilities are
ready for use in the Premises, and (c) Tenant has reasonable access to the
Premises.
3.5 Early Possession. If Tenant occupies the Premises prior to the
Commencement Date for the purpose of conducting business therein, such occupancy
shall be subject to all provisions of this Lease, such occupancy shall not
change the termination date, and Tenant shall pay Base Rent and all other
charges provided for in this Lease during the period of such occupancy. Tenant
shall be liable for any damages or delays caused by Tenant's activities at the
Premises. Prior to entering the Premises Tenant shall obtain all insurance it
is required to obtain by the Lease and shall provide certificates of said
insurance to Landlord. Tenant shall coordinate such entry with Landlord's
building manager, and such entry shall be made in compliance with all terms and
conditions of this Lease and the Rules and Regulations attached hereto.
3.6 Option To Extend. Tenant shall have the option to extend the Lease
(the "Extension Option") term for one (1) additional period of two (2) years
(the "Extension Period") upon the terms and conditions set forth in this Lease,
except that the Base Rent and other charges during such Extension Period shall
be equal to the Fair Market Rent. For the purposes of this Lease, "Fair Market
Rent" shall mean the rental and all other monetary payments that Landlord could
obtain from a third party desiring to lease the Premises as of the first day of
the Extension Period, taking into account all relevant factors. Such Fair
Market Rent may include annual adjustments and in no event shall the Fair Market
Rent be less than the Base Rent and charges payable for the final year of the
Lease Term. Tenant shall exercise the Extension Option, if at all, by giving
written notice to Landlord no later than nine (9) months prior to the first day
of the purported Extension Period (time being of the essence) and such exercise
shall be irrevocable. Landlord shall initially designate Fair Market Rent by
written notice to Tenant at least thirty (30) days prior to the commencement of
the Extension Period (the "Designation"). If Tenant disagrees with the
Designation, Tenant shall proceed with the Extension Option but advise Landlord
in writing of its disagreement with Landlord's Designation within ten (10) days.
If Tenant does not unequivocally advise Landlord of its disagreement with
Landlord's Designation within said ten (10) day period, Tenant shall
conclusively be deemed to have agreed to the Designation. If the parties shall
not have agreed in writing (or to be deemed to have agreed pursuant to the
immediately preceding sentence) as to the Fair Market Rent, within twenty (20)
days after Landlord's receipt of Tenant's notice of disagreement with the
Designation, each party shall, within thirty (30) days thereafter appoint an
appraiser who shall be instructed to determine independently the Fair Market
Rent. If the difference between the amounts so determined by such appraisers
shall not exceed ten percent (10%) of the lesser of such amounts, then the Fair
Market Rent shall be an amount equal to fifty percent (50%) of the total of the
amounts so determined. If the difference between the amounts so determined
shall exceed ten percent (10%) of the lesser of such amounts, then such two (2)
appraisers shall have ten (10) days thereafter to appoint a third appraiser, but
if such appraisers fail to do so within such ten (10) day period, then either
Landlord or Tenant may request the Greater Boston Real Estate Board or any
successor organization thereto to appoint an appraiser within ten (10) days of
such request, and both Landlord and Tenant shall be bound by any appointment so
made within such ten (10) day period. If no such
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appraiser shall have been appointed within such ten (10) days either Landlord or
Tenant may apply to any court having jurisdiction to have such appointment made
by such court. Any appraiser appointed by the original appraisers, by the
Greater Boston Real Estate Board or by such court shall be instructed to
determine the Fair Market Rent in accordance with the definition of such term
contained herein and within twenty (20) days after its appointment. If the third
appraisal shall exceed the higher of the first two appraisals, the Fair Market
Rent shall be the higher of the first two appraisals; if the third appraisal is
less than the lower of the first two appraisals, the Fair Market Rent shall be
the lower of the first two appraisals. In all other cases, the Fair Market Rent
shall be equal to the third appraisal. All such determinations of the Fair
Market Rent shall be final and binding upon Landlord and Tenant as the Fair
Market Rent as of the first day of the Extension Option. Notwithstanding the
foregoing, if either party shall fail to appoint its appraiser within the 30 day
period specified above (such party being referred to herein as the "failing
party"), the other party may serve notice on the failing party requiring the
failing party to appoint its appraiser within ten (10) days of the giving of
such notice. If the failing party shall not respond by appointment of its
appraiser within said ten day period, then the appraiser appointed by the other
party shall be the sole appraiser whose determination of the Fair Market Rent
shall be binding and conclusive upon Tenant and Landlord. This provision for
determination by appraisal shall be specifically enforceable to the extent such
remedy is available under applicable law, and any determination hereunder shall
be final and binding upon the parties except as otherwise provided by applicable
law. Each party shall pay for the fees and expenses of the appraiser appointed
by it, but the fees and expenses of the third appraiser shall be shared equally
by the parties. All appraisers appointed hereunder shall be MAI appraisers, so-
called. In the event that a determination of Fair Market Rent is not completed
prior to the beginning of the Extension Period, then, if Landlord shall have
made a Designation of Fair Market Rent, such Designation (notwithstanding
Tenant's disagreement therewith) shall be deemed the Fair Market Rent until the
Fair Market Rent is otherwise determined pursuant to applicable provisions
hereof. On determination of the Fair Market Rent, if such determination would be
the basis on which Basic Annual Rent is to be paid, retroactive adjustment shall
be made in order to give it effect to the determination of Fair Market Rent.
4. Rent.
4.1 Base Rent. Subject to adjustment as hereinafter provided in section
4.3, Tenant shall pay to Landlord the Base Rent for the Premises set forth in
section 1.10 plus the Tenant Electricity Cost (at the rate specified in Section
1.10 but subject to adjustment as set forth herein), without offset or deduction
on the first day of each calendar month. At the time Tenant executes this Lease
it shall pay to Landlord the advance Base Rent described in section 1.11. Base
Rent for any period during the term hereof which is for less than one month
shall be prorated based upon the actual number of days of the calendar month
involved. Base Rent and all other amounts payable to Landlord hereunder shall
be payable to Landlord in lawful money of the United States, and Tenant shall be
responsible for delivering said amounts to Landlord at the address stated herein
or to such other persons or to such other places as Landlord may designate in
writing. The Tenant Electricity Cost and Tenant Electricity Rate specified in
Section 1.10 are estimates and shall be reviewed and adjusted annually by
Landlord in a commercially reasonable manner.
4.2 Operating Expense Increases. Tenant shall pay to Landlord during the
term hereof, in addition to the Base Rent, Tenant's Share of the amount by which
all Operating Expenses for each Comparison Year exceeds the amount of all
Operating Expenses for the Base Year. If less than 95% of the rentable square
feet in the Project is occupied by tenants or Landlord is not supplying services
to 95% of the rentable square feet of the Project at any time during any
calendar year (including the Base Year), Operating Expenses for such calendar
year shall be an amount equal to the Operating Expenses which would normally be
expected to be incurred had 95% of the Project's rentable square feet been
occupied and had Landlord been supplying services to 95% of the Project's
rentable square feet throughout such calendar year (hereinafter the "Grossed Up
Operating Expenses"). Landlord's good faith estimate of Grossed Up Operating
Expenses shall not be subject to challenge or recalculation by Tenant. Tenant's
Share of Operating Expense increases shall be determined in accordance with the
following provisions:
(a) "Tenant's Share" is defined as the percentage set forth in
section 1.13, which percentage has been determined by dividing the number of
rentable square feet in the Premises by ninety-five percent (95%) of the total
number of rentable square feet in the Project and multiplying the resulting
quotient by one hundred (100). In the event that the number of rentable square
feet in the Project or the Premises changes, Tenant's Share shall be adjusted in
the year the change occurs, and Tenant's Share for such year shall be determined
on the basis of the days during such year that each Tenant's Share was in
effect.
(b) "Comparison Year" is defined as each calendar year during the
term of this Lease after the Base Year. Tenant's Share of the Operating Expense
increases for the last Comparison Year of the Lease Term shall be
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prorated according to that portion of such Comparison Year as to which Tenant is
responsible for a share of such increase.
(c) "Operating Expenses" shall include all costs, expenses and fees
incurred by Landlord in connection with or attributable to the Project,
including but not limited to, the following items: (i) all costs, expenses and
fees associated with or attributable to the ownership, management, operation,
repair, maintenance, improvement, alteration and replacement of the Project, or
any part thereof, including but not limited to, the following: (A) all surfaces,
coverings, decorative items, carpets, drapes, window coverings, parking areas,
loading and unloading areas, trash areas, roadways, sidewalks, stairways, walls,
structural elements, landscaped areas, striping, bumpers, irrigation systems,
lighting facilities, building exteriors and roofs, fences and gates; (B) all
heating, ventilating and air conditioning equipment ("HVAC") (including, but not
limited to, the cost of replacing or retrofitting HVAC equipment to comply with
laws regulating or prohibiting the use or release of chlorofluorocarbons or
hydrochlorofluorocarbons), plumbing, mechanical, electrical systems, life safety
systems and equipment, telecommunication equipment, elevators, escalators,
tenant directories, fire detection systems including sprinkler system
maintenance and repair; (ii) the cost of trash disposal, janitorial services and
security services and systems; (iii) the cost of all insurance purchased by
Landlord and enumerated in section 8 of this Lease, including any deductibles;
(iv) the cost of water, sewer, gas, electricity, and other utilities available
at the Project and paid by Landlord; (v) the cost of labor, salaries and
applicable fringe benefits incurred by Landlord; (vi) the cost of materials,
supplies and tools used in managing, maintaining and/or cleaning the Project;
(vii) the cost of accounting fees, management fees, legal fees and consulting
fees attributable to the ownership, operation, management, maintenance and
repair of the Project plus the cost of any space occupied by the property
manager and leasing agent (if Landlord is the property manager, Landlord shall
be entitled to receive a fair market management fee); (viii) the cost of
operating, replacing, modifying and/or adding improvements or equipment mandated
by any law, statute, regulation or directive of any governmental agency and any
repairs or removals necessitated thereby (including, but not limited to, the
cost of complying with the Americans With Disabilities Act and regulations of
the Occupational Safety and Health Administration); (ix) payments made by
Landlord under any easement, license, operating agreement, declaration,
restrictive covenant, or instrument pertaining to the payment or sharing of
costs among property owners; (x) any business property taxes or personal
property taxes imposed upon the fixtures, machinery, equipment, furniture and
personal property used in connection with the operation of the Project; (xi) the
cost of all business licenses, any gross receipt taxes based on rental income or
other payments received by Landlord, commercial rental taxes or any similar
taxes or fees; (xii) transportation taxes, fees or assessments, including but
not limited to, mass transportation fees, metrorail fees, trip fees, regional
and transportation district fees, (xiii) all costs and expenses associated with
or related to the implementation by Landlord of any transportation demand
management program or similar program; (xiv) fees assessed by any air quality
management district or other governmental or quasi-governmental entity
regulating pollution; (xv) the cost of installing intrabuilding network cabling
("INC") and maintaining, repairing, securing and replacing existing INC; and
(xvi) ground rent payments and other charges, if any, due pursuant to the ground
lease described in Section 2.1; and (xvii) the cost of any other service
provided by Landlord or any cost that is elsewhere stated in this Lease to be an
"Operating Expense." Real Property Taxes shall be paid in accordance with
section 10 below and shall not be included in Operating Expenses. Landlord
shall have the right but not the obligation, from time to time, to equitably
allocate some or all of the Operating Expenses among different tenants of the
Project or among the different buildings which comprise the Project (the "Cost
Pools"). Such Cost Pools may include, but shall not be limited to, the office
space tenants of the Project and the retail space tenants of the Project.
(d) Operating Expenses shall not include: (i) leasing commissions,
attorneys' fees, costs, disbursements, and other expenses incurred in connection
with negotiations or disputes with tenants, or in connection with leasing,
renovating or improving space for tenants or other occupants or prospective
tenants or other occupants of the Building;
(ii) the cost of any service sold to any tenant (including
Tenant) or other occupant for which Landlord is entitled to be
reimbursed as an additional charge or rental over and above the basic
rent and escalations payable under the lease with that tenant;
(iii) any depreciation on the Building or Property;
(iv) costs of a capital nature, except as provided in section
4.2(e);
(v) expenses in connection with services or other benefits of
a type that are not provided to Tenant but which are provided another
tenant or occupant of the Building or Property;
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(vi) wages, salaries, or other compensation paid to any
executive employees above the grade of building manager;
(vii) the cost of correcting any building code or other
violations which were violations prior to the Commencement Date;
(viii) any expenses reimbursed by insurance proceeds.
(e) If the cost incurred in making an improvement or replacing any
equipment is not fully deductible as an expense in the year incurred in
accordance with generally accepted accounting principles, the cost shall be
amortized over the useful life of the improvement or equipment, as reasonably
determined by Landlord, together with an interest factor on the unamortized cost
of such item equal to the lesser of (i) twelve percent (12%) per annum or (ii)
the maximum rate of interest permitted by applicable law.
(f) Tenant's Share of Operating Expense increases shall be payable by
Tenant within ten (10) days after a reasonably detailed statement of actual
expenses is presented to Tenant by Landlord. At Landlord's option, however,
Landlord may, from time to time, estimate what Tenant's Share of Operating
Expense increases will be, and the same shall be payable by Tenant monthly
during each Comparison Year of the Lease term, on the same day as the Base Rent
is due hereunder. In the event that Tenant pays Landlord's estimate of Tenant's
Share of Operating Expense increases, Landlord shall use its best efforts to
deliver to Tenant within one hundred eighty (180) days after the expiration of
each Comparison Year a reasonably detailed statement (the "Statement") showing
Tenant's Share of the actual Operating Expense increases incurred during such
year. Landlord's failure to deliver the Statement to Tenant within said period
shall not constitute Landlord's waiver of its right to collect said amounts or
otherwise prejudice Landlord's rights hereunder. If Tenant's payments under
this section 4.2(f) during said Comparison Year exceed Tenant's Share as
indicated on the Statement, Tenant shall be entitled to credit the amount of
such overpayment against Tenant's Share of Operating Expense increases next
falling due. If Tenant's payments under this section 4.2(f) during said
Comparison Year were less than Tenant's Share as indicated on the Statement,
Tenant shall pay to Landlord the amount of the deficiency within thirty (30)
days after delivery by Landlord to Tenant of the Statement. Landlord and Tenant
shall forthwith adjust between them by cash payment any balance determined to
exist with respect to that portion of the last Comparison Year for which Tenant
is responsible for Operating Expense increases, notwithstanding that the Lease
term may have terminated before the end of such Comparison Year; and this
provision shall survive the expiration or earlier termination of the Lease.
(g) The computation of Tenant's Share of Operating Expense increases
is intended to provide a formula for the sharing of costs by Landlord and Tenant
and will not necessarily result in the reimbursement to Landlord of the exact
costs it has incurred.
(h) If Tenant disputes the amount set forth in the Statement, Tenant
shall have the right, at Tenant's sole expense, not later than sixty (60) days
following receipt of such Statement, to cause Landlord's books and records with
respect to the calendar year which is the subject of the Statement to be audited
by a certified public accountant mutually acceptable to Landlord and Tenant.
The audit shall take place at the offices of Landlord where its books and
records are located at a mutually convenient time during Landlord's regular
business hours. Tenant's Share of Operating Expenses shall be appropriately
adjusted based upon the results of such audit, and the results of such audit
shall be final and binding upon Landlord and Tenant. Tenant shall have no right
to conduct an audit or to give Landlord notice that it desires to conduct an
audit at any time Tenant is in default under the Lease. The accountant
conducting the audit shall be compensated on an hourly basis and shall not be
compensated based upon a percentage of overcharges it discovers. No subtenant
shall have any right to conduct an audit, and no assignee shall conduct an audit
for any period during which such assignee was not in possession of the Premises.
Tenant's right to undertake an audit with respect to any calendar year shall
expire sixty (60) days after Tenant's receipt of the Statement for such calendar
year, and such Statement shall be final and binding upon Tenant and shall, as
between the parties, be conclusively deemed correct, at the end of such sixty
(60) day period, unless prior thereto Tenant shall have given Landlord written
notice of its intention to audit Operating Expenses for the calendar year which
is the subject of the Statement. If Tenant gives Landlord notice of its
intention to audit Operating Expenses, it must commence such audit within sixty
(60) days after such notice is delivered to Landlord, and the audit must be
completed within one hundred twenty (120) days after such notice is delivered to
Landlord. If Tenant does not commence and complete the audit within such
periods, the Statement which Tenant elected to audit shall be deemed final and
binding upon Tenant and shall, as between the parties, be conclusively
8
deemed correct. Tenant agrees that the results of any Operating Expense audit
shall be kept strictly confidential by Tenant and shall not be disclosed to any
other person or entity.
4.3 Intentionally Deleted.
5. Security Deposit. Tenant shall, at its sole cost, deliver to Landlord at
the time it executes this Lease an irrevocable letter of credit ("LOC") in the
amount set forth as the security deposit in Section 1.12 as security for
Tenant's faithful performance of Tenant's obligations hereunder. The LOC shall
name Landlord (and its successors and assigns) as the beneficiary, and be drawn
on a financial institution reasonably acceptable to Landlord in the form
attached hereto as Exhibit E. Tenant shall maintain the required LOC in full
force and effect throughout the Term of this Lease, renewing the LOC as often as
is necessary with the same bank or financial institution (or a similar bank or
financial institution acceptable to Landlord) and upon the same terms and
conditions, not less than thirty (30) days prior to the purported expiration
date of the LOC. In the event that Tenant fails to timely renew the LOC as
aforesaid, Landlord shall be entitled to draw against the entire amount of the
LOC. The LOC shall be assignable by Landlord to any party holding the lessor
interest in this Lease, and upon such assignment, Landlord shall be relieved
from all liability to Tenant therefor. If Tenant fails to pay Base Rent or
other charges due hereunder, or otherwise defaults with respect to any provision
of this Lease, Landlord shall have the right to draw the entire amount of the
LOC or to draw upon so much of the LOC as equals the defaulted payment(s), plus
any interest or other charges due thereon in accordance with this Lease, for the
payment of any Base Rent or other charge due hereunder, to pay any other sum to
which Landlord may become obligated by reason of Tenant's default, or to
compensate Landlord for any loss or damage which Landlord may suffer thereby.
If Landlord elects to make a partial draw upon the LOC, Tenant shall promptly
restore the LOC to its original amount. Landlord's election to make a partial
draw upon the LOC shall in no event prejudice or waive Landlord's right to
terminate this Lease if permitted under applicable provisions of this Lease, nor
shall such election prejudice or waive any other remedy of Landlord reserved
under the terms of this Lease, including the right to draw the entire amount of
the LOC. The LOC shall be available for payment against the presentation of a
sight draft by the Landlord together with a certificate from Landlord that
Tenant is in default of its obligations hereunder and that Landlord is entitled,
by the terms of this Lease, to draw upon the LOC. If Tenant performs all of
Tenant's obligations hereunder, the LOC, or so much thereof as has not
heretofore been drawn or applied by Landlord, shall be returned, without payment
of interest or other amount for its use, to Tenant (or, at Landlord's option, to
the last assignee, if any, of Tenant's interest hereunder) at the expiration of
the Term hereof, and after Tenant has vacated the Premises. No trust
relationship is created herein between Landlord and Tenant with respect to said
LOC. Tenant acknowledges that the LOC is not an advance payment of any kind or
a measure of Landlord's damages in the event of Tenant's default. Tenant hereby
waives the provision of any law which is inconsistent with this Section 5. In
the event that (i) Tenant has a financing event that raises an amount in excess
of $20,000,000, and (ii) Tenant has faithfully performed all of its obligations
pursuant to this Lease without default for eighteen (18) months, Landlord will
reduce the amount of the security deposit to an amount equal to four (4) months
Base Rent or accept in lieu of the LOC an irrevocable letter of credit in such
amount but otherwise in conformity with this section 5.
6. Use.
6.1 Use. The Premises shall be used and occupied only for the purpose set
forth in section 1.7 and for no other purpose. If section 1.7 gives Tenant the
right to use the Premises for general office use, by way of example and not
limitation, general office use shall not include medical office use or any
similar use, laboratory use, classroom use, an executive suite or similar use,
any use not characterized by applicable zoning and land use restrictions as
general office use, any use which would require Landlord or Tenant to obtain a
conditional use permit or variance from any federal, state or local authority,
or any other use not compatible, in Landlord's sole judgment, with a first class
office building. Notwithstanding any permitted use inserted in section 1.7,
Tenant shall not use the Premises for any purpose which would violate the
Project's certificate of occupancy, any conditional use permit or variance
applicable to the Project or violate any covenants, conditions or other
restrictions applicable to the Project. No exclusive use has been granted to
Tenant hereunder.
6.2 Compliance with Law.
(a) Landlord warrants to Tenant that, to the best of Landlord's
knowledge, the Premises, as of the Commencement Date, but without regard to
alterations or improvements to be made by Tenant, does not and shall not
materially violate any laws, covenants or restrictions of record, or any
applicable building code, regulation or ordinance in effect on such date.
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(b) Tenant shall, at Tenant's sole expense, promptly comply with all
applicable laws, ordinances, rules, regulations, orders, certificates of
occupancy, conditional use or other permits, variances, covenants and
restrictions of record, the reasonable recommendations of Landlord's engineers
or other consultants, and requirements of any fire insurance underwriters,
rating bureaus or government agencies, now in effect or which may hereafter come
into effect, whether or not they reflect a change in policy from that now
existing, during the term or any part of the term hereof, relating in any manner
to the Premises or the occupation and use by Tenant of the Premises. Tenant
shall, at Tenant's sole expense, comply with all requirements of the Americans
With Disabilities Act that relate to Tenant's specific use of the Premises, and
all federal, state and local laws and regulations governing occupational safety
and health. Tenant shall conduct its business and use the Premises in a lawful
manner and shall not use or permit the use of the Premises or the Common Areas
in any manner that will tend to create waste or a nuisance or shall tend to
disturb other occupants of the Project. Tenant shall obtain, at its sole
expense, any permit or other governmental authorization required to operate its
business from the Premises. Landlord shall not be liable for the failure of any
other tenant or person to abide by the requirements of this section or to
otherwise comply with applicable laws and regulations, and Tenant shall not be
excused from the performance of its obligations under this Lease due to such a
failure.
6.3 Condition of Premises. Except as otherwise provided in this Lease,
Tenant hereby accepts the Premises and the Project in their condition existing
as of the date this Lease is executed by Landlord and Tenant, subject to all
applicable federal, state and local laws, ordinances, regulations and permits
governing the use of the Premises, the Project's certificate of occupancy, any
applicable conditional use permits or variances, and any easements, covenants or
restrictions affecting the use of the Premises or the Project. Tenant
acknowledges that it has satisfied itself by its own independent investigation
that the Premises and the Project are suitable for its intended use, and that
neither Landlord nor Landlord's agents has made any representation or warranty
as to the present or future suitability of the Premises, or the Project for the
conduct of Tenant's business.
7. Maintenance, Repairs and Alterations.
7.1 Landlord's Obligations. Landlord shall keep the Project (excluding the
interior of the Premises and space leased to other occupants of the Project) in
good condition and repair. If plumbing pipes, electrical wiring, HVAC ducts or
vents within the Premises are in need of repair, Tenant shall immediately notify
Landlord, and Landlord shall cause the repairs to be completed within a
reasonable time, and Tenant shall immediately pay the entire cost of the repairs
to Landlord. Except as provided in section 9.3, there shall be no abatement of
rent or liability to Tenant on account of any injury or interference with
Tenant's business with respect to any improvements, alterations or repairs made
by Landlord to the Project or any part thereof. Tenant expressly waives the
benefits of any statute now or hereafter in effect which would otherwise afford
Tenant the right to make repairs at Landlord's expense or to terminate this
Lease because of Landlord's failure to keep the Project in good order, condition
and repair.
7.2 Tenant's Obligations.
(a) Subject to the requirements of section 7.3, Tenant shall be
responsible for keeping the Premises in good condition and repair, at Tenant's
sole expense. By way of example, and not limitation, Tenant shall be
responsible, at Tenant's sole expense, for repairing and/or replacing, carpet,
marble, tile or other flooring, paint, wall coverings, corridor and interior
doors and door hardware, telephone and computer equipment, interior glass,
window treatments, ceiling tiles, shelving, cabinets, millwork and other tenant
improvements. In addition, Tenant shall be responsible for the installation,
maintenance and repair of all telephone, computer and related cabling from the
telephone terminal room on the floor on which the Premises is located to and
throughout the Premises, and Tenant shall be responsible for any loss, cost,
damage, liability and expense (including attorneys' fees) arising out of or
related to the installation, maintenance, repair and replacement of such
cabling. If Tenant fails to keep the Premises in good condition and repair,
Landlord may, but shall not be obligated to, make any necessary repairs. If
Landlord makes such repairs, Landlord may bill Tenant for the cost of the
repairs as additional rent, and said additional rent shall be payable by Tenant
within ten (10) days.
(b) On the last day of the term hereof, or on any sooner termination,
Tenant shall surrender the Premises to Landlord in the same condition as
received, ordinary wear and tear and casualty damage excepted, clean and free of
debris and Tenant's personal property. Tenant shall repair any damage to the
Premises occasioned by the installation or removal of Tenant's trade fixtures,
furnishings and equipment. Tenant shall leave the electrical distribution
systems, plumbing systems, lighting fixtures, HVAC ducts and vents, window
treatments, wall coverings, carpets and
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other floor coverings, doors and door hardware, millwork, ceilings and other
tenant improvements at the Premises and in good condition, ordinary wear and
tear excepted.
7.3 Alterations and Additions.
(a) Tenant shall not, without Landlord's prior written consent, which
may be given or withheld in Landlord's sole discretion, make any alterations,
improvements, additions, utility installations or repairs (hereinafter
collectively referred to as "Alterations") in, on or about the Premises or the
Project. Notwithstanding the foregoing, Landlord's consent shall not be
unreasonably withheld to any Alterations which do not affect the structure or
exterior portions of the Building or which adversely affect the mechanical,
plumbing, electrical, HVAC or fire alarm systems of the Building. Alterations
shall include, but shall not be limited to, the installation or alteration of
security or fire protection systems, communication systems, millwork, shelving,
file retrieval or storage systems, carpeting or other floor covering, window and
wall coverings, electrical distribution systems, lighting fixtures, telephone or
computer system wiring, HVAC and plumbing. At the expiration of the term,
Landlord may require the removal of any Alterations installed by Tenant and the
restoration of the Premises and the Project to their prior condition, at
Tenant's expense. If a work letter agreement is entered into by Landlord and
Tenant, Tenant shall not be obligated to remove the tenant improvements
constructed in accordance with the work letter agreement. If, as a result of
any Alteration made by Tenant, Landlord is obligated to comply with the
Americans With Disabilities Act or any other law or regulation and such
compliance requires Landlord to make any improvement or Alteration to any
portion of the Project, as a condition to Landlord's consent, Landlord shall
have the right to require Tenant to pay to Landlord prior to the construction of
any Alteration by Tenant, the entire cost of any improvement or alteration
Landlord is obligated to complete by such law or regulation. Should Landlord
permit Tenant to make its own Alterations, Tenant shall use only such contractor
as has been expressly approved by Landlord, and Landlord may require Tenant to
provide to Landlord, at Tenant's sole cost and expense, a lien and completion
bond in an amount equal to one and one-half times the estimated cost of such
Alterations, to insure Landlord against any liability for mechanic's and
materialmen's liens and to insure completion of the work. In addition, Tenant
shall pay to Landlord a fee equal to six percent (6%) of the cost of the
Alterations to compensate Landlord for the overhead and other costs it incurs in
reviewing the plans for the Alterations and in monitoring the construction of
the Alterations. Should Tenant make any Alterations without the prior approval
of Landlord, or use a contractor not expressly approved by Landlord, Landlord
may, at any time during the term of this Lease, require that Tenant remove all
or part of the Alterations and return the Premises to the condition it was in
prior to the making of the Alternations. In the event Tenant makes any
Alterations, Tenant agrees to obtain or cause its contractor to obtain, prior to
the commencement of any work, "builders all risk" insurance in an amount
approved by Landlord and workers compensation insurance.
(b) Any Alterations in or about the Premises that Tenant shall desire
to make shall be presented to Landlord in written form, with plans and
specifications which are sufficiently detailed to obtain a building permit. If
Landlord consents to an Alteration, the consent shall be deemed conditioned upon
Tenant acquiring a building permit from the applicable governmental agencies,
furnishing a copy thereof to Landlord prior to the commencement of the work, and
compliance by Tenant with all conditions of said permit in a prompt and
expeditious manner. Tenant shall provide Landlord with as-built plans and
specifications for any Alterations made to the Premises.
(c) Tenant shall pay, when due, all claims for labor or materials
furnished or alleged to have been furnished to or for Tenant at or for use in
the Premises, which claims are or may be secured by any mechanic's or
materialmen's lien against the Premises or the Project, or any interest therein.
If Tenant shall, in good faith, contest the validity of any such lien, Tenant
shall furnish to Landlord a surety bond satisfactory to Landlord in an amount
equal to not less than one and one half times the amount of such contested lien
claim indemnifying Landlord against liability arising out of such lien or claim.
Such bond shall be sufficient in form and amount to free the Project from the
effect of such lien. In addition, Landlord may require Tenant to pay Landlord's
reasonable attorneys' fees and costs in participating in such action.
(d) Tenant shall give Landlord not less than ten (10) days' advance
written notice prior to the commencement of any work in the Premises by Tenant,
and Landlord shall have the right to post notices of non-responsibility in or on
the Premises or the Project.
(e) All Alterations (whether or not such Alterations constitute trade
fixtures of Tenant) which may be made to the Premises by Tenant shall be paid
for by Tenant, at Tenant's sole expense, and shall be made and done in a good
and workmanlike manner and with new materials satisfactory to Landlord, and such
Alteration shall be the
11
property of Landlord and remain upon and be surrendered with the Premises at the
expiration of the Lease term, unless Landlord requires their removal pursuant to
section 7.3(a). Tenant's personal property and equipment, other than that which
is affixed to the Premises so that it cannot be removed without material damage
to the Premises or the Project, shall remain the property of Tenant and may be
removed by Tenant subject to the provisions of section 7.2(b).
7.4 Failure of Tenant to Remove Property. If this Lease is terminated due
to the expiration of its term or otherwise, and Tenant fails to remove its
property as required by section 7.2(b), in addition to any other remedies
available to Landlord under this Lease, and subject to any other right or remedy
Landlord may have under applicable law, Landlord may remove any property of
Tenant from the Premises and store the same elsewhere at the expense and risk of
Tenant.
8. Insurance.
8.1 Insurance-Tenant.
(a) Tenant shall obtain and keep in force during the term of this
Lease a commercial general liability policy of insurance with coverages
reasonably acceptable to Landlord, which, by way of example and not limitation,
protects Tenant and Landlord (as an additional insured) against claims for
bodily injury, personal injury and property damage based upon, involving or
arising out of the ownership, use, occupancy or maintenance of the Premises and
all areas appurtenant thereto. Such insurance shall be on an occurrence basis
providing single limit coverage in an amount not less than $2,000,000 per
occurrence with an "Additional Insured-Managers and Landlords of Premises
Endorsement" and contain the "Amendment of the Pollution Exclusion" for damage
caused by heat, smoke or fumes from a hostile fire. The policy shall not
contain any intra-insured exclusions as between insured persons or
organizations, but shall include coverage for liability assumed under this Lease
as an "insured contract" for the performance of Tenant's indemnity obligations
under this Lease.
(b) Tenant shall obtain and keep in force during the term of this
Lease "all risk" extended coverage property insurance with coverages reasonably
acceptable to Landlord. Said insurance shall be written on a one hundred
percent (100%) replacement cost basis on Tenant's personal property, all tenant
improvements installed at the Premises by Landlord or Tenant, Tenant's trade
fixtures and other property. By way of example, and not limitation, such
policies shall provide protection against any peril included within the
classification "fire and extended coverage," against vandalism and malicious
mischief, theft, sprinkler leakage, earthquake damage and flood damage. If this
Lease is terminated as the result of a casualty in accordance with section 9,
the proceeds of said insurance attributable to the replacement of all tenant
improvements at the Premises shall be paid to Landlord. If insurance proceeds
are available to repair the tenant improvements, at Landlord's option, all
insurance proceeds Tenant is entitled to receive to repair the tenant
improvements shall be paid by the insurance company directly to Landlord,
Landlord shall select the contractor to repair and/or replace the tenant
improvements, and Landlord shall cause the tenant improvements to be repaired
and/or replaced to the extent insurance proceeds are available.
(c) Tenant shall, at all times during the term hereof, maintain in
effect workers' compensation insurance as required by applicable law and
business interruption and extra expense insurance reasonably satisfactory to
Landlord.
8.2 Insurance-Landlord.
(a) Landlord shall obtain and keep in force a policy of general
liability insurance with coverage against such risks and in such amounts as
Landlord deems advisable insuring Landlord against liability arising out of the
ownership, operation and management of the Project.
(b) Landlord shall also obtain and keep in force during the term of
this Lease a policy or policies of insurance covering loss or damage to the
Project in the amount of not less than eighty percent (80%) of the full
replacement cost thereof, as determined by Landlord from time to time. The
terms and conditions of said policies and the perils and risks covered thereby
shall be determined by Landlord, from time to time, in Landlord's sole
discretion. In addition, at Landlord's option, Landlord shall obtain and keep
in force, during the term of this Lease, a policy of rental interruption
insurance, with loss payable to Landlord, which insurance shall, at Landlord's
option, also cover all Operating Expenses. At Landlord's option, Landlord may
obtain insurance coverages and/or bonds related to the operation of the parking
areas. At Landlord's option, Landlord may obtain coverage for flood and
earthquake damages.
12
In addition, Landlord shall have the right to obtain such additional insurance
as is customarily carried by owners or operators of other comparable office
buildings in the geographical area of the Project. Tenant will not be named as
an additional insured in any insurance policies carried by Landlord and shall
have no right to any proceeds therefrom. The policies purchased by Landlord
shall contain such deductibles as Landlord may determine. In addition to amounts
payable by Tenant in accordance with section 4.2, Tenant shall pay any increase
in the property insurance premiums for the Project over what was payable
immediately prior to the increase to the extent the increase is specified by
Landlord's insurance carrier as being caused by the nature of Tenant's occupancy
or any act or omission of Tenant.
8.3 Insurance Policies. Tenant shall deliver to Landlord copies of the
insurance policies required under section 8.1 within fifteen (15) days prior to
the Commencement Date of this Lease, and Landlord shall have the right to
reasonably approve the terms and conditions of said policies. Tenant's
insurance policies shall not be cancelable or subject to reduction of coverage
or other material modification except after thirty (30) days prior written
notice to Landlord. Tenant shall, at least thirty (30) days prior to the
expiration of such policies, furnish Landlord with renewals thereof. Tenant's
insurance policies shall be issued by insurance companies authorized to do
business in the state in which the Project is located, and said companies shall
maintain during the policy term a "General Policyholder's Rating" of at least A
and a financial rating of at least "Class X" (or such other rating as may be
required by any lender having a lien on the Project) as set forth in the most
recent edition of "Best Insurance Reports." All insurance obtained by Tenant
shall be primary to and not contributory with any similar insurance carried by
Landlord, whose insurance shall be considered excess insurance only. Landlord,
and at Landlord's option, the holder of any mortgage or deed of trust
encumbering the Project and any person or entity managing the Project on behalf
of Landlord, shall be named as an additional insured on all insurance policies
Tenant is obligated to obtain by section 8.1 above. Tenant's insurance policies
shall not include deductibles in excess of Five Thousand Dollars ($5,000).
8.4 Waiver of Subrogation. Landlord waives any and all rights of recovery
against Tenant for or arising out of damage to, or destruction of, the Project
to the extent that Landlord's insurance policies then in force insure against
such damage or destruction and permit such waiver, and only to the extent of the
insurance proceeds actually received by Landlord for such damage or destruction.
Landlord's waiver shall not relieve Tenant from liability under section 21 below
except to the extent Landlord's insurance company actually satisfies Tenant's
obligations under section 21 in accordance with the requirements of section 21.
Tenant waives any and all rights of recovery against Landlord, Landlord's
employees, agents and contractors for liability or damages if such liability or
damage is covered by Tenant's insurance policies then in force or the insurance
policies Tenant is required to obtain by section 8.1 (whether or not the
insurance Tenant is required to obtain by section 8.1 is then in force and
effect), whichever is broader. Tenant's waiver shall not be limited by the
amount of insurance then carried by Tenant or the deductibles applicable
thereto. Tenant shall cause the insurance policies it obtains in accordance
with this section 8 to provide that the insurance company waives all right of
recovery by subrogation against Landlord in connection with any liability or
damage covered by Tenant's insurance policies.
8.5 Coverage. Landlord makes no representation to Tenant that the limits
or forms of coverage specified above or approved by Landlord are adequate to
insure Tenant's property or Tenant's obligations under this Lease, and the
limits of any insurance carried by Tenant shall not limit Tenant's obligations
or liability under any indemnity provision included in this Lease or under any
other provision of this Lease.
9. Damage or Destruction.
9.1 Effect of Damage or Destruction. If all or part of the Project is
damaged by fire, earthquake, flood, explosion, the elements, riot, the release
or existence of Hazardous Substances (as defined below) or by any other cause
whatsoever (hereinafter collectively referred to as "damages"), but the damages
are not material (as defined in section 9.2 below), Landlord shall repair the
damages to the Project as soon as is reasonably possible, and this Lease shall
remain in full force and effect. If all or part of the Project is destroyed or
materially damaged (as defined in section 9.2 below), Landlord shall have the
right, in its sole and complete discretion, to repair or to rebuild the Project
or to terminate this Lease. Landlord shall within one hundred twenty (120) days
after the discovery of such material damage or destruction notify Tenant in
writing of Landlord's intention to repair or to rebuild or to terminate this
Lease. Tenant shall in no event be entitled to compensation or damages on
account of annoyance or inconvenience in making any repairs, or on account of
construction, or on account of Landlord's election to terminate this Lease.
Notwithstanding the foregoing, if Landlord shall elect to rebuild or repair the
Project after material damage or destruction, but in good faith determines that
the Premises cannot be substantially repaired within two hundred forty (240)
days after the date of the discovery of the material damage or destruction,
without payment of overtime or other premiums, and the damage to the Project
will
13
render the entire Premises unusable during said two hundred forty (240) day
period, Landlord shall notify Tenant thereof in writing at the time of
Landlord's election to rebuild or repair, and Tenant shall thereafter have a
period of fifteen (15) business days within which Tenant may elect to terminate
this Lease, upon thirty (30) days' advance written notice to Landlord. Tenant's
termination right described in the preceding sentence shall not apply if the
damage was caused by the negligent or intentional acts of Tenant or its
employees, agents, contractors or invitees. Failure of Tenant to exercise said
election within said fifteen (15) business day period shall constitute Tenant's
agreement to accept delivery of the Premises under this Lease whenever tendered
by Landlord, provided Landlord thereafter pursues reconstruction or restoration
diligently to completion, subject to delays caused by Force Majeure Events. If
Landlord is unable to repair the damage to the Premises or the Project during
such three hundred sixty (360) day period due to Force Majeure Events, the three
hundred sixty (360) day period shall be extended by the period of delay caused
by the Force Majeure Events. Subject to section 9.3 below, if Landlord or Tenant
terminates this Lease in accordance with this section 9.1, Tenant shall continue
to pay all Base Rent, Operating Expense increases and other amounts due
hereunder which arise prior to the date of termination.
9.2 Definition of Material Damage. Damage to the Project shall be deemed
material if, in Landlord's reasonable judgment, the uninsured cost of repairing
the damage will exceed Twenty-Five Thousand Dollars ($25,000). If insurance
proceeds are available to Landlord in an amount which is sufficient to pay the
entire cost of repairing all of the damage to the Project, the damage shall be
deemed material if the cost of repairing the damage exceeds One Hundred Thousand
Dollars ($100,000). Damage to the Project shall also be deemed material if (a)
the Project cannot be rebuilt or repaired to substantially the same condition it
was in prior to the damage due to laws or regulations in effect at the time the
repairs will be made, (b) the holder of any mortgage or deed of trust
encumbering the Project requires that insurance proceeds available to repair the
damage in excess of Twenty-Five Thousand Dollars ($25,000) be applied to the
repayment of the indebtedness secured by the mortgage or the deed of trust, or
(c) the damage occurs during the last twelve (12) months of the Lease term.
9.3 Abatement of Rent. If Landlord elects to repair damage to the Project
and all or part of the Premises will be unusable or inaccessible to Tenant in
the ordinary conduct of its business until the damage is repaired, and the
damage was not caused by the negligence or intentional acts of Tenant or its
employees, agents, contractors or invitees, Tenant's Base Rent and Tenant's
Share of Operating Expense increases shall be abated until the repairs are
completed in proportion to the amount of the Premises which is unusable or
inaccessible to Tenant in the ordinary conduct of its business. Notwithstanding
the foregoing, there shall be no abatement of Base Rent or Tenant's Share of
Operating Expense increases by reason of any portion of the Premises being
unusable or inaccessible for a period equal to five (5) consecutive business
days or less. If the cause of the damage or destruction is an earthquake or a
flood, Tenant shall only be entitled to an abatement of rent when and if
Landlord receives reimbursement for such rent from insurance proceeds, if any.
9.4 Tenant's Acts. If such damage or destruction occurs as a result of
the negligence or the intentional acts of Tenant or Tenant's employees, agents,
contractors or invitees, and the proceeds of insurance which are actually
received by Landlord are not sufficient to pay for the repair of all of the
damage, Tenant shall pay, at Tenant's sole cost and expense, to Landlord upon
demand, the difference between the cost of repairing the damage and the
insurance proceeds received by Landlord.
9.5 Tenant's Property. As more fully set forth in section 47, and to the
extent allowed by law, Landlord shall not be liable to Tenant or its employees,
agents, contractors, invitees or customers for loss or damage to merchandise,
tenant improvements, fixtures, automobiles, furniture, equipment, computers,
files or other property (hereinafter collectively "Tenant's property") located
at the Project. Tenant shall repair or replace all of Tenant's property at
Tenant's sole cost and expense. Tenant acknowledges that it is Tenant's sole
responsibility to obtain adequate insurance coverage to compensate Tenant for
damage to Tenant's property.
9.6 Waiver. Landlord and Tenant hereby waive the provisions of any
present or future statutes which relate to the termination of leases when leased
property is damaged or destroyed and agree that such event shall be governed by
the terms of this Lease.
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10. Real and Personal Property Taxes.
10.1 Payment of Taxes. Tenant shall pay to Landlord during the term of
this Lease, in addition to Base Rent and Tenant's Share of Operating Expense
increases, Tenant's Share of the amount by which all "Real Property Taxes" (as
defined in section 10.2 below) for each Comparison Year exceeds the amount of
all Real Property Taxes for the Base Year. Tenant's Share of Real Property Tax
increases shall be payable by Tenant at the same time, in the same manner and
under the same terms and conditions as Tenant pays Tenant's Share of Operating
Expense increases as provided in section 4.2(f) of this Lease. Except as
expressly provided in section 10.4 below, if the Real Property Taxes incurred
during any Comparison Year are less than the Real Property Taxes incurred during
the Base Year, Tenant shall not be entitled to receive any credit, offset,
reduction or benefit as a result of said occurrence.
10.2 Definition of "Real Property Tax". As used herein, the term "Real
Property Taxes" shall include any form of real estate tax or assessment,
general, special, ordinary or extraordinary, improvement bond or bonds imposed
on the Project or any portion thereof by any authority having the direct or
indirect power to tax, including any city, county, state or federal government,
or any school, agricultural, sanitary, fire, street, drainage or other
improvement district thereof, as against any legal or equitable interest of
Landlord in the Project or in any portion thereof, unless such tax is defined as
an Operating Expense by section 4.3(c). Real Property Taxes shall not include
income, franchise, inheritance and gift taxes.
10.3 Personal Property Taxes. Tenant shall pay prior to delinquency all
taxes assessed against and levied upon trade fixtures, furnishings, equipment
and all other personal property of Tenant contained in the Premises or related
to Tenant's use of the Premises. If any of Tenant's personal property shall be
assessed with Landlord's real or personal property, Tenant shall pay to Landlord
the taxes attributable to Tenant within ten (10) days after receipt of a written
statement from Landlord setting forth the taxes applicable to Tenant's property.
10.4 Reassessments. From time to time Landlord may challenge the assessed
value of the Project as determined by applicable taxing authorities and/or
Landlord may attempt to cause the Real Property Taxes to be reduced on other
grounds. If Landlord is successful in causing the Real Property Taxes to be
reduced or in obtaining a refund, rebate, credit or similar benefit (hereinafter
collectively referred to as a "reduction"), Landlord shall have the option, in
its sole discretion, to (a) retain the benefit of the reduction and to pay, at
Landlord's sole expense, the costs incurred by Landlord in causing the reduction
to be made or (b) to the extent practicable, to credit the reduction(s) to Real
Property Taxes for the calendar year to which a reduction applies and to
recalculate the Real Property Taxes owed by Tenant for years after the year in
which the reduction applies based on the reduced Real Property Taxes (if a
reduction applies to Tenant's Base Year, the Base Year Real Property Taxes shall
be reduced by the amount of the reduction and Tenant's Share of Real Property
Tax increases shall be recalculated for all Comparison Years following the year
of the reduction based on the lower Base Year amount). If Landlord proceeds in
accordance with (b) above, all costs incurred by Landlord in obtaining the Real
Property Tax reductions shall be considered an Operating Expense and Landlord
shall determine, in its sole discretion, to which years any reductions will be
applied. In addition, if Landlord proceeds in accordance with (b) above, all
accounting and related costs incurred by Landlord in calculating new Base Years
for tenants and in making all other adjustments shall be an Operating Expense.
If Landlord proceeds in accordance with (a) above, Landlord shall not be
obligated to refund to Tenant all or any portion of the reduction or to reduce
Real Property Taxes for the years to which any reductions apply.
11. Utilities.
11.1 Services Provided by Landlord. Subject to all governmental rules,
regulations and guidelines applicable thereto, Landlord shall use its best
efforts to provide HVAC to the Premises and Common Areas during the times
described in section 11.4, reasonable amounts of electricity for normal
lighting, water in the Premises or in the Common Area for reasonable and normal
drinking and lavatory use, replacement light bulbs and/or fluorescent tubes and
ballasts for standard overhead fixtures, and building standard janitorial
services.
11.2 Services Exclusive To Tenant. Tenant shall pay for all water, gas,
heat, heat pump fuel costs and charges, telephone and other utilities and
services supplied and/or metered exclusively to the Premises or to Tenant,
together with any taxes thereon. If any such services are not separately
metered to the Premises, Tenant shall pay, at Landlord's option, either Tenant's
Share or a reasonable proportion to be determined by Landlord of all charges
jointly metered with other premises in the Building.
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11.3 Occupant Density. Tenant shall maintain a ratio of not more than one
Occupant (as defined below) for each two hundred fifty (250) square feet of
rentable area in the Premises. Upon request by Landlord, Tenant shall maintain
on a daily basis an accurate record of the number of employees, visitors,
contractors and other people that visit the Premises (collectively "Occupants").
Landlord shall have the right to audit Tenant's Occupant record and, at
Landlord's option, Landlord shall have the right to periodically visit the
Premises without advance notice to Tenant in order to track the number of
Occupants arriving at the Premises. For purposes of this section, "Occupants"
shall not include people not employed by Tenant that deliver or pick up mail or
other packages at the Premises, employees of Landlord or employees of Landlord's
agents or contractors. Tenant acknowledges that increased numbers of Occupants
causes additional wear and tear on the Premises and the Common Areas, additional
use of electricity, water and other utilities, and additional demand for other
Building services. Tenant's failure to comply with the requirements of this
section shall constitute a default under section 13.3 and Landlord shall have
the right, in addition to any other remedies it may have at law or equity, to
specifically enforce Tenant's obligations under this section.
11.4 Hours of Service. Building services and utilities shall be provided
Monday through Friday from 8:00 a.m. to 6:00 p.m. and Saturdays from 9:00 a.m.
to noon. Janitorial services shall be provided Monday through Friday. HVAC and
other Building services shall not be provided at other times or on nationally
recognized holidays. Tenant acknowledges that there will be no air circulation
or temperature control within the Premises when the HVAC is not operating and,
consequently, during such times the Premises may not be suitable for human
occupation or for the operation of computers and other heat sensitive equipment.
Nationally recognized holidays shall include, but shall not necessarily be
limited to, New Years Day, Martin Luther King Jr. Day, Presidents' Day, Memorial
Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day. Landlord
shall use its best efforts to provide HVAC to Tenant at times other than those
set forth above subject to (a) the payment by Tenant of Landlord's standard
charge, as determined by Landlord from time to time, in Landlord's sole
discretion, for after hours HVAC. Tenant shall pay all after hours HVAC charges
to Landlord within three (3) days after Landlord bills Tenant for said charges.
11.5 Excess Usage by Tenant. Notwithstanding the use set forth in section
1.7, Tenant shall not use Building utilities or services in excess of those used
by the average office building tenant using its premises for ordinary office
use. Tenant shall not install at the Premises office machines, lighting
fixtures or other equipment which will generate above average heat, noise or
vibration at the Premises or which will adversely effect the temperature
maintained by the HVAC system. If Tenant does use Building utilities or
services in excess of those used by the average office building tenant, Landlord
shall have the right, in addition to any other rights or remedies it may have
under this Lease, to (a) at Tenant's expense, install separate metering devices
at the Premises, and to charge Tenant for its usage, (b) require Tenant to pay
to Landlord all costs, expenses and damages incurred by Landlord as a result of
such usage, and (c) require Tenant to stop using excess utilities or services.
11.6 Interruptions. Tenant agrees that, to the extent allowed by law,
Landlord shall not be liable to Tenant for its failure to furnish gas,
electricity, telephone service, water, HVAC or any other utility services or
building services when such failure is occasioned, in whole or in part, by
repairs, replacements, or improvements, by any strike, lockout or other labor
trouble, by inability to secure electricity, gas, water, telephone service or
other utility at the Project, by any accident, casualty or event arising from
any cause whatsoever, including the act, negligence or default of Tenant or any
other person or entity, or by any other cause, and such failures shall never be
deemed to constitute an eviction or disturbance of Tenant's use and possession
of the Premises or relieve Tenant from the obligation of paying rent or
performing any of its obligations under this Lease. Furthermore, Landlord shall
not be liable under any circumstances for loss of property or for injury to, or
interference with, Tenant's business, including, without limitation, loss of
profits, however occurring, through or in connection with or incidental to a
failure to furnish any such services or utilities. Landlord may comply with
voluntary controls or guidelines promulgated by any governmental entity relating
to the use or conservation of energy, water, gas, light or electricity or the
reduction of automobile or other emissions without creating any liability of
Landlord to Tenant under this Lease.
12. Assignment and Subletting.
12.1 Landlord's Consent Required. Tenant shall not voluntarily or by
operation of law assign, transfer, hypothecate, mortgage, sublet, or otherwise
transfer or encumber all or any part of Tenant's interest in this Lease or in
the Premises (hereinafter collectively a "Transfer"), without Landlord's prior
written consent, which shall not be unreasonably withheld. Landlord shall
respond to Tenant's written request for consent hereunder within twenty (20)
days after Landlord's receipt of the written request from Tenant. Any attempted
Transfer without such consent shall be void
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and shall constitute a material default and breach of this Lease. Tenant's
written request for Landlord's consent shall include, and Landlord's twenty (20)
day response period referred to above shall not commence, unless and until
Landlord has received from Tenant, all of the following information: (a)
financial statements for the proposed assignee or subtenant for the past three
(3) years (or, subject to Landlord's reasonable discretion, such lesser period
if three (3) years' statements are unavailable) prepared in accordance with
generally accepted accounting principles, (b) a TRW credit report or similar
report on the proposed assignee or subtenant, (c) a detailed description of the
business the assignee or subtenant intends to operate at the Premises, (d) the
proposed effective date of the assignment or sublease, (e) a copy of the
proposed sublease or assignment agreement which includes all of the terms and
conditions of the proposed assignment or sublease, (f) a detailed description of
any ownership or commercial relationship between Tenant and the proposed
assignee or subtenant and (g) a detailed description of any Alterations the
proposed assignee or subtenant desires to make to the Premises. If the
obligations of the proposed assignee or subtenant will be guaranteed by any
person or entity, Tenant's written request shall not be considered complete
until the information described in (a) and (b) of the previous sentence has been
provided with respect to each proposed guarantor. "Transfer" shall also include
the transfer (a) if Tenant is a corporation, and Tenant's stock is not publicly
traded over a recognized securities exchange, of more than twenty five percent
(25%) of the voting stock of such corporation during the term of this Lease
(whether or not in one or more transfers) or the dissolution, merger or
liquidation of the corporation, or (b) if Tenant is a partnership or other
entity, of more than twenty five percent (25%) of the profit and loss
participation in such partnership or entity during the term of this Lease
(whether or not in one or more transfers) or the dissolution, merger or
liquidation of the partnership. If Tenant is a limited or general partnership
(or is comprised of two or more persons, individually or as co-partners), Tenant
shall not be entitled to change or convert to (i) a limited liability company,
(ii) a limited liability partnership or (iii) any other entity which possesses
the characteristics of limited liability without the prior written consent of
Landlord, which consent may be given or withheld in Landlord's sole discretion.
Tenant's sole remedy in the event that Landlord shall wrongfully withhold
consent to or disapprove any assignment or sublease shall be to obtain an order
by a court of competent jurisdiction that Landlord grant such consent; in no
event shall Landlord be liable for damages with respect to its granting or
withholding consent to any proposed assignment or sublease. If Landlord shall
exercise any option to recapture the Premises, or shall deny a request for
consent to a proposed assignment or sublease, Tenant shall indemnify, defend and
hold Landlord harmless from and against any and all losses, liabilities,
damages, costs and claims that may be made against Landlord by the proposed
assignee or subtenant, or by any brokers or other persons claiming a commission
or similar compensation in connection with the proposed assignment or sublease.
Notwithstanding anything to the contrary contained in this Lease, the original
Tenant hereunder may assign this Lease without the prior written consent of
Landlord, but upon prior written notice to Landlord, to an entity which
controls, is controlled by, or is under common control with Tenant; to any
entity which results from a merger of, reorganization of, or consolidation with
Tenant; or to any entity which acquires all or substantially all of the stock or
the assets of Tenant, as a going concern, with respect to the business that is
being conducted by Tenant at substantially all of its locations (collectively, a
"Permitted Transfer"), provided:
a. the assignee of this Lease shall have a net worth, on a consolidated
basis, immediately prior to and following such assignment, in an
amount not less than that of Tenant, immediately preceding the
transfer and balance sheets and profit and loss statements certified
by a certified public accountant or officer of Tenant and furnished
by Tenant to Landlord with Tenant's notice of such assignment; and
b. Tenant shall not be in default after the expiration of all applicable
grace periods of any material term and/or provision of this Lease on
the date Landlord is notified of such assignment and on the effective
date of assignment; and
c. The permitted use of the Premises shall be for the same permitted use
as provided in this Lease; and
d. Such assignee shall execute an assumption of lease agreement assuming
the obligations of this Lease with the same force and effect as if
such assignee executed this Lease as the Tenant; and
e. The assignee or transferee or its parent, subsidiaries or affiliates
shall not be subject to any bankruptcy or insolvency proceedings at
the time of such sale; and
f. Notwithstanding such assignment, Tenant shall remain fully liable and
shall not be released from performing any of the terms of this Lease.
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Furthermore and notwithstanding anything to the contrary contained herein, a
sale or transfer of the capital stock of the original Tenant shall be deemed a
Permitted Transfer if (1) such sale or transfer occurs in connection with a bona
fide financing or capitalization for the benefit of the original Tenant, or (2)
Tenant is or becomes a publicly traded corporation, and in either event Tenant
shall notify Landlord in writing promptly after the occurrence of such an event.
Landlord shall have no right to terminate the Lease in connection with, and
shall have no right to any sums or other economic consideration resulting from
any bona fide Permitted Transfer.
12.2 Leveraged Buy-out. Except as otherwise set forth in section 12.1, the
involvement by Tenant or its assets in any transaction, or series of
transactions (by way of merger, sale, acquisition, financing, refinancing,
transfer, leveraged buy-out or otherwise) whether or not a formal assignment or
hypothecation of this Lease or Tenant's assets occurs, which results or will
result in a reduction of the "Net Worth" of Tenant as hereinafter defined, by an
amount equal to or greater than twenty-five percent (25%) of such Net Worth of
Tenant as it is represented to Landlord at the time of the execution by Landlord
of this Lease, or as it exists immediately prior to said transaction or
transactions constituting such reduction, at whichever time said Net Worth of
Tenant was or is greater, shall be considered to be an assignment of this Lease
by Tenant to which Landlord may reasonably withhold its consent. "Net Worth" of
Tenant for purposes of this section 12.2 shall be the net worth of Tenant
(excluding any guarantors) established under generally accepted accounting
principles consistently applied.
12.3 Standard For Approval. Landlord shall not unreasonably withhold its
consent to a Transfer provided that Tenant has complied with each and every
requirement, term and condition of this section 12. Tenant acknowledges and
agrees that each requirement, term and condition in this section 12 is a
reasonable requirement, term or condition. It shall be deemed reasonable for
Landlord to withhold its consent to a Transfer if any requirement, term or
condition of this section 12 is not complied with or: (a) the Transfer would
cause Landlord to be in violation of its obligations under another lease or
agreement to which Landlord is a party; (b) in Landlord's reasonable judgment, a
proposed assignee or subtenant has a smaller net worth than Tenant had on the
date this Lease was entered into with Tenant or is less able financially to pay
the rents due under this Lease as and when they are due and payable; (c) a
proposed assignee's or subtenant's business will impose a burden on the
Project's parking facilities, elevators, Common Areas or utilities that is
greater than the burden imposed by Tenant, in Landlord's reasonable judgment;
(d) the terms of a proposed assignment or subletting will allow the proposed
assignee or subtenant to exercise a right of renewal, right of expansion, right
of first offer, right of first refusal or similar right held by Tenant; (e) a
proposed assignee or subtenant refuses to enter into a written assignment
agreement or sublease, reasonably satisfactory to Landlord, which provides that
it will abide by and assume all of the terms and conditions of this Lease
(subject to section 12.4(k)) for the term of any assignment or sublease and
containing such other terms and conditions as Landlord reasonably deems
necessary; (f) the use of the Premises by the proposed assignee or subtenant
will not be identical to the use permitted by this Lease; (g) any guarantor of
this Lease refuses to consent to the Transfer or to execute a written agreement
reaffirming the guaranty; (h) Tenant is in default as defined in section 13.1 at
the time of the request; (i) if requested by Landlord, the assignee or subtenant
refuses to sign a non-disturbance and attornment agreement in favor of
Landlord's lender; (j) Landlord has sued or been sued by the proposed assignee
or subtenant or has otherwise been involved in a legal dispute with the proposed
assignee or subtenant; (k) the assignee or subtenant is involved in a business
which is not in keeping with the then current standards of the Project; (l) the
proposed assignee or subtenant is an existing tenant of the Project or is a
person or entity then negotiating with Landlord for the lease of space in the
Project; (m) the assignment or sublease will result in there being more than one
subtenant of the Premises (e.g., the assignee or subtenant intends to use the
Premises as an executive suite); or (n) the assignee or subtenant is a
governmental or quasi-governmental entity or an agency, department or
instrumentality of a governmental or quasi-governmental agency.
12.4 Additional Terms and Conditions. The following terms and conditions
shall be applicable to any Transfer:
(a) Regardless of Landlord's consent, no Transfer shall release
Tenant from Tenant's obligations hereunder or alter the primary liability of
Tenant to pay the rent and other sums due Landlord hereunder and to perform all
other obligations to be performed by Tenant hereunder or release any guarantor
from its obligations under its guaranty.
(b) Landlord may accept rent from any person other than Tenant
pending approval or disapproval of an assignment or subletting.
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(c) Neither a delay in the approval or disapproval of a Transfer, nor
the acceptance of rent, shall constitute a waiver or estoppel of Landlord's
right to exercise its rights and remedies for the breach of any of the terms or
conditions of this section 12.
(d) The consent by Landlord to any Transfer shall not constitute a
consent to any subsequent Transfer by Tenant or to any subsequent or successive
Transfer by an assignee or subtenant. However, Landlord may consent to
subsequent Transfers or any amendments or modifications thereto without
notifying Tenant or anyone else liable on the Lease and without obtaining their
consent, and such action shall not relieve such persons from liability under
this Lease.
(e) In the event of any default under this Lease, Landlord may
proceed directly against Tenant, any guarantors or anyone else responsible for
the performance of this Lease, including any subtenant or assignee, without
first exhausting Landlord's remedies against any other person or entity
responsible therefor to Landlord, or any security held by Landlord.
(f) Landlord's written consent to any Transfer by Tenant shall not
constitute an acknowledgment that no default then exists under this Lease nor
shall such consent be deemed a waiver of any then existing default.
(g) The discovery of the fact that any financial statement relied
upon by Landlord in giving its consent to an assignment or subletting was
materially false shall, at Landlord's election, render Landlord's consent null
and void.
(h) Landlord shall not be liable under this Lease or under any
sublease to any subtenant.
(i) No assignment or sublease may be modified or amended without
Landlord's prior written consent.
(j) The occurrence of a transaction described in section 12.2 shall
give Landlord the right (but not the obligation) to require that Tenant
immediately provide Landlord with an additional security deposit equal to twelve
(12) times the monthly Base Rent payable under the Lease, and Landlord may make
its receipt of such amount a condition to Landlord's consent to such
transaction.
(k) Any assignee of, or subtenant under, this Lease shall, by reason
of accepting such assignment or entering into such sublease, be deemed, for the
benefit of Landlord, to have assumed and agreed to conform and comply with each
and every term, covenant, condition and obligation herein to be observed or
performed by Tenant during the term of said assignment or sublease, other than
such obligations as are contrary or inconsistent with provisions of an
assignment or sublease to which Landlord has specifically consented in writing.
12.5 Additional Terms and Conditions Applicable to Subletting. The
following terms and conditions shall apply to any subletting by Tenant of all or
any part of the Premises and shall be deemed included in all subleases under
this Lease whether or not expressly incorporated therein:
(a) Tenant hereby absolutely and unconditionally assigns and
transfers to Landlord all of Tenant's interest in all rentals and income arising
from any sublease entered into by Tenant, and Landlord may collect such rent and
income and apply same toward Tenant's obligations under this Lease; provided,
however, that until a default shall occur in the performance of Tenant's
obligations under this Lease, Tenant may receive, collect and enjoy the rents
accruing under such sublease. Landlord shall not, by reason of this or any other
assignment of such rents to Landlord nor by reason of the collection of the
rents from a subtenant, be deemed to have assumed or recognized any sublease or
to be liable to the subtenant for any failure of Tenant to perform and comply
with any of Tenant's obligations to such subtenant under such sublease,
including, but not limited to, Tenant's obligation to return any security
deposit. Tenant hereby irrevocably authorizes and directs any such subtenant,
upon receipt of a written notice from Landlord stating that a default exists in
the performance of Tenant's obligations under this Lease, to pay to Landlord the
rents due as they become due under the sublease. Tenant agrees that such
subtenant shall have the right to rely upon any such statement and request from
Landlord, and that such subtenant shall pay such rents to Landlord without any
obligation or right to inquire as to whether such default exists and
notwithstanding any notice from or claim from Tenant to the contrary.
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(b) In the event Tenant shall default in the performance of its
obligations under this Lease, Landlord at its option and without any obligation
to do so, may require any subtenant to attorn to Landlord, in which event
Landlord shall undertake the obligations of Tenant under such sublease from the
time of the exercise of said option to the termination of such sublease;
provided, however, Landlord shall not be liable for any prepaid rents or
security deposit paid by such subtenant to Tenant or for any other prior
defaults of Tenant under such sublease.
12.6 Transfer Premium from Assignment or Subletting. Landlord shall be
entitled to receive from Tenant (as and when received by Tenant) as an item of
additional rent (hereinafter the "Transfer Premium"), seventy-five percent (75%)
of all amounts received by Tenant from the subtenant or assignee in excess of
the amounts payable by Tenant to Landlord hereunder. The Transfer Premium shall
be reduced by the reasonable brokerage commissions and legal fees actually paid
by Tenant in order to assign the Lease or to sublet a portion of the Premises.
"Transfer Premium" shall mean all Base Rent, additional rent or other
consideration of any type whatsoever payable by the assignee or subtenant in
excess of the Base Rent and additional rent payable by Tenant under this Lease.
If less than all of the Premises is transferred, the Base Rent and the
additional rent shall be determined on a per rentable square foot basis.
"Transfer Premium" shall also include, but not be limited to, key money and
bonus money paid by the assignee or subtenant to Tenant in connection with such
Transfer, and any payment in excess of fair market value for services rendered
by Tenant to the assignee or subtenant or for assets, fixtures, inventory,
equipment, or furniture transferred by Tenant to the assignee or subtenant in
connection with such Transfer. Notwithstanding the foregoing, this section 12.6
shall not apply to a bona fide Permitted Transfer.
12.7 Landlord's Option to Recapture Space. Notwithstanding anything to the
contrary contained in this section 12, Landlord shall have the option, by giving
written notice to Tenant within thirty (30) days after receipt of any request by
Tenant to assign this Lease or to sublease space in the Premises, to terminate
this Lease with respect to said space as of the date thirty (30) days after
Landlord's election. In the event of a recapture by Landlord, if this Lease
shall be canceled with respect to less than the entire Premises, the Base Rent,
Tenant's Share of Operating Expense increases and the number of parking spaces
Tenant may use shall be adjusted on the basis of the number of rentable square
feet retained by Tenant in proportion to the number of rentable square feet
contained in the original Premises, and this Lease as so amended shall continue
thereafter in full force and effect, and upon request of either party, the
parties shall execute written confirmation of same. If Landlord recaptures only
a portion of the Premises, it shall construct and erect at its sole cost such
partitions as may be required to sever the space to be retained by Tenant from
the space recaptured by Landlord. Landlord may, at its option, lease any
recaptured portion of the Premises to the proposed subtenant or assignee or to
any other person or entity without liability to Tenant. Tenant shall not be
entitled to any portion of the profit, if any, Landlord may realize on account
of such termination and reletting. Tenant acknowledges that the purpose of this
section 12.7 is to enable Landlord to receive profit in the form of higher rent
or other consideration to be received from an assignee or subtenant, to give
Landlord the ability to meet additional space requirements of other tenants of
the Project and to permit Landlord to control the leasing of space in the
Project. Tenant acknowledges and agrees that the requirements of this section
12.7 are commercially reasonable and are consistent with the intentions of
Landlord and Tenant.
12.8 Landlord's Expenses. In the event Tenant shall assign this Lease or
sublet the Premises or request the consent of Landlord to any Transfer, then
Tenant shall pay Landlord's reasonable costs and expenses incurred in connection
therewith, including, but not limited to, attorneys', architects', accountants',
engineers' or other consultants' fees.
13. Default; Remedies.
13.1 Default by Tenant. Landlord and Tenant hereby agree that the
occurrence of any one or more of the following events is a material default by
Tenant under this Lease and that said default shall give Landlord the rights
described in section 13.2. Landlord or Landlord's authorized agent shall have
the right to execute and to deliver any notice of default, notice to pay rent or
quit or any other notice Landlord gives Tenant.
(a) Tenant's failure to make any payment of Base Rent, Tenant's Share
of Operating Expense increases, Tenant's Share of Real Property Taxes, parking
charges (if any), charges for after hours HVAC, late charges, or any other
payment required to be made by Tenant hereunder, as and when due, where such
failure shall continue for a period of three (3) business days after written
notice thereof from Landlord to Tenant. In the event that Landlord serves
Tenant with a notice to pay rent or quit pursuant to applicable unlawful
detainer statutes, such notice shall also constitute the notice required by this
section 13.1(a).
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(b) The abandonment of the Premises by Tenant in which event Landlord
shall not be obligated to give any notice of default to Tenant.
(c) The failure of Tenant to comply with any of its obligations under
sections 6.1, 6.2(b), 7.2, 7.3, 8, 12, 18, 19, 21, 23, 26, 34, 35 and 56 where
Tenant fails to comply with its obligations or fails to cure any earlier breach
of such obligation within ten (10) days following written notice from Landlord
to Tenant. In the event Landlord serves Tenant with a notice to quit or any
other notice pursuant to applicable unlawful detainer statutes, said notice
shall also constitute the notice required by this section 13.1(c).
(d) The failure by Tenant to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by Tenant
(other than those referenced in sections 13.1(a), (b) and (c), above), where
such failure shall continue for a period of ten (10) days after written notice
thereof from Landlord to Tenant; provided, however, that if the nature of
Tenant's non-performance is such that more than ten (10) days are reasonably
required for its cure, then Tenant shall not be deemed to be in default if
Tenant commences such cure within said ten (10) day period and thereafter
diligently pursues such cure to completion. In the event that Landlord serves
Tenant with a notice to quit or any other notice pursuant to applicable unlawful
detainer statutes, said notice shall also constitute the notice required by this
section 13.1(d).
(e) The making by Tenant or any guarantor of Tenant's obligations
hereunder of any general arrangement or general assignment for the benefit of
creditors; (ii) Tenant or any guarantor becoming a "debtor" as defined in 11
U.S.C. 101 or any successor statute thereto (unless, in the case of a petition
filed against Tenant or guarantor, the same is dismissed within sixty (60)
days); (iii) the appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where possession is not restored to Tenant within thirty
(30) days; (iv) the attachment, execution or other judicial seizure of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where such seizure is not discharged within thirty (30)
days; or (v) the insolvency of Tenant. In the event that any provision of this
section 13.1(e) is unenforceable under applicable law, such provision shall be
of no force or effect.
(f) The discovery by Landlord that any financial statement,
representation or warranty given to Landlord by Tenant, or by any guarantor of
Tenant's obligations hereunder, was materially false at the time given. Tenant
acknowledges that Landlord has entered into this Lease in material reliance on
such information.
(g) If Tenant is a corporation or a partnership, the dissolution or
liquidation of Tenant.
(h) If Tenant's obligations under this Lease are guaranteed: (i) the
death of a guarantor, (ii) the termination of a guarantor's liability with
respect to this Lease other than in accordance with the terms of such guaranty,
(iii) a guarantor's becoming insolvent or the subject of a bankruptcy filing,
(iv) a guarantor's refusal to honor the guaranty, or (v) a guarantor's breach of
its guaranty obligation on an anticipatory breach basis.
13.2 Remedies.
(a) In the event of any material default or breach of this Lease by
Tenant, Landlord may, at any time thereafter, with or without notice or demand,
and without limiting Landlord in the exercise of any right or remedy which
Landlord may have by reason of such default:
(i) terminate Tenant's right to possession of the Premises by
any lawful means, in which case this Lease and the term hereof shall terminate
and Tenant shall immediately surrender possession of the Premises to Landlord.
If Landlord terminates this Lease, Landlord may recover from Tenant (A) the
worth at the time of award of the unpaid rent and all additional charges which
would have been payable hereunder for the remainder of the term of the Lease
including, without limitation, Tenant's share of Operating Expenses increases,
Tenant's Share of Real Property Tax increases, and Tenant Electricity Cost which
had been earned at the time of termination; (B) the worth at the time of award
of the amount by which the unpaid rent and all additional charges which would
have been payable hereunder for the remainder of the term of the Lease
including, without limitation, Tenant's share of Operating Expenses increases,
Tenant's Share of Real Property Tax increases, and Tenant Electricity Cost which
would have been earned after termination until the time of award exceeds the
amount of such rental loss that Tenant proves could have been reasonably
avoided; (C) the worth at the time of award of the amount by which the unpaid
rent and all additional charges
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which would have been payable hereunder for the remainder of the term of the
Lease including, without limitation, Tenant's share of Operating Expenses
increases, Tenant's Share of Real Property Tax increases, and Tenant Electricity
Cost for the balance of the term after the time of award exceeds the amount of
such rental loss that Tenant proves could be reasonably avoided; and (D) any
other amount necessary to compensate Landlord for all detriment proximately
caused by Tenant's failure to perform its obligations under the Lease or which
in the ordinary course of things would be likely to result therefrom, including,
but not limited to, the cost of recovering possession of the Premises, the
unamortized cost of Landlord's Work, expenses of releasing, including necessary
renovation and alteration of the Premises, reasonable attorneys' fees, any real
estate commissions actually paid by Landlord and the unamortized value of any
free rent, reduced rent, tenant improvement allowance or other economic
concessions provided by Landlord. The "worth at time of award" of the amounts
referred to in section 13.2(a)(i)(A) and (B) shall be computed by allowing
interest at the lesser of ten percent (10%) per annum or the maximum interest
rate permitted by applicable law. The worth at the time of award of the amount
referred to in section 13.2(a)(i)(C) shall be computed by discounting such
amount at the discount rate of the Federal Reserve Bank of Boston at the time of
award plus one percent (1%). For purposes of this section 13.2(a)(i), "rent"
shall be deemed to be all monetary obligations required to be paid by Tenant
pursuant to the terms of this Lease.
(ii) collect sublease rents (or appoint a receiver to collect
such rent) and otherwise perform Tenant's obligations at the Premises, it being
agreed, however, that the appointment of a receiver for Tenant shall not
constitute an election by Landlord to terminate this Lease.
(iii) pursue any other remedy now or hereafter available to
Landlord under the laws or judicial decisions of the state in which the Premises
are located.
(b) No remedy or election hereunder shall be deemed exclusive, but
shall, wherever possible, be cumulative with all other remedies at law or in
equity. The expiration or termination of this Lease and/or the termination of
Tenant's right to possession of the Premises shall not relieve Tenant of
liability under any indemnity provisions of this Lease as to matters occurring
or accruing during the term of the Lease or by reason of Tenant's occupancy of
the Premises.
(c) If Tenant abandons or vacates the Premises, Landlord may re-
enter the Premises and such re-entry shall not be deemed to constitute
Landlord's election to accept a surrender of the Premises or to otherwise
relieve Tenant from liability for its breach of this Lease. No surrender of the
Premises shall be effective against Landlord unless Landlord has entered into a
written agreement with Tenant in which Landlord expressly agrees to (i) accept a
surrender of the Premises and (ii) relieve Tenant of liability under the Lease.
The delivery by Tenant to Landlord of possession of the Premises shall not
constitute the termination of the Lease or the surrender of the Premises.
13.3 Default by Landlord. Landlord shall not be in default under this
Lease unless Landlord fails to perform obligations required of Landlord within
thirty (30) days after written notice by Tenant to Landlord and to the holder of
any mortgage or deed of trust encumbering the Project whose name and address
shall have theretofore been furnished to Tenant in writing, specifying wherein
Landlord has failed to perform such obligation; provided, however, that if the
nature of Landlord's obligation is such that more than thirty (30) days are
required for its cure, then Landlord shall not be in default if Landlord
commences performance within such thirty (30) day period and thereafter
diligently pursues the same to completion. In no event shall Tenant have the
right to terminate this Lease as a result of Landlord's default, and Tenant's
remedies shall be limited to damages and/or an injunction. Tenant hereby waives
its right to recover consequential damages (including, but not limited to, lost
profits) or punitive damages arising out of a Landlord default. This Lease and
the obligations of Tenant hereunder shall not be affected or impaired because
Landlord is unable to fulfill any of its obligations hereunder or is delayed in
doing so, if such inability or delay is caused by reason of a Force Majeure
Event, and the time for Landlord's performance shall be extended for the period
of any such delay.
13.4 Late Charges. Tenant hereby acknowledges that late payment by Tenant
to Landlord of Base Rent, Tenant's Share of Operating Expense increases,
Tenant's Share of Real Estate Tax increases, Tenant Electricity Cost, parking
charges (if any), after hours HVAC charges, or other sums due hereunder will
cause Landlord to incur costs not contemplated by this Lease, the exact amount
of which will be extremely difficult to ascertain. Such costs include, but are
not limited to, processing and accounting charges and late charges which may be
imposed on Landlord by the terms of any mortgage or trust deed encumbering the
Project. Accordingly, if any installment of Base Rent, Tenant's Share of
Operating Expense increases, parking charges (if any), after hours HVAC charges
or any other sum due from Tenant shall not be received by Landlord when such
amount shall be due, then, without any requirement for notice or demand to
Tenant, Tenant shall immediately pay to Landlord a late charge equal to six
percent (6%) of such overdue amount. The
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parties hereby agree that such late charge represents a fair and reasonable
estimate of the costs Landlord will incur by reason of late payment by Tenant.
Acceptance of such late charge by Landlord shall in no event constitute a waiver
of Tenant's default with respect to such overdue amount, nor prevent Landlord
from exercising any of the other rights and remedies granted hereunder including
the assessment of interest under section 13.5.
13.5 Interest on Past-due Obligations. Except as expressly herein
provided, any amount due to Landlord that is not paid when due shall bear
interest at the lesser of eighteen percent (18%) per annum or the maximum rate
permitted by applicable law. Payment of such interest shall not excuse or cure
any default by Tenant under this Lease; provided, however, that interest shall
not be payable on late charges incurred by Tenant nor on any amounts upon which
late charges are paid by Tenant.
13.6 Payment of Rent and Security Deposit after Default. If Tenant fails
to pay Base Rent, Tenant's Share of Operating Expense increases, parking charges
(if any) or any other monetary obligation due hereunder on the date it is due,
after Tenant's third failure within twelve (12) consecutive months to pay any
monetary obligation on the date it is due, at Landlord's option, all monetary
obligations of Tenant hereunder shall thereafter be paid by cashier's check, and
Tenant shall, upon demand, provide Landlord with an additional security deposit
equal to three (3) months' Base Rent. If Landlord has required Tenant to make
said payments by cashier's check or to provide an additional security deposit,
Tenant's failure to make a payment by cashier's check or to provide the
additional security deposit shall be a material default hereunder.
14. Landlord's Right to Cure Default; Payments by Tenant. All covenants and
agreements to be kept or performed by Tenant under this Lease shall be performed
by Tenant at Tenant's sole cost and expense and without any reduction of rent.
If Tenant shall fail to perform any of its obligations under this Lease, within
a reasonable time after such performance is required by the terms of this Lease,
Landlord may, but shall not be obligated to, after three (3) days prior written
notice to Tenant, make any such payment or perform any such act on Tenant's
behalf without waiving its rights based upon any default of Tenant and without
releasing Tenant from any obligations hereunder. Tenant shall pay to Landlord,
within ten (10) days after delivery by Landlord to Tenant of statements
therefore, an amount equal to the expenditures reasonably made by Landlord in
connection with the remedying by Landlord of Tenant's defaults pursuant to the
provisions of this section 14.
15. Condemnation. If any portion of the Premises or the Project are taken
under the power of eminent domain, or sold under the threat of the exercise of
said power (all of which are herein called "condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning authority takes
title or possession, whichever first occurs; provided that if so much of the
Premises or Project are taken by such condemnation as would substantially and
adversely affect the operation and profitability of Tenant's business conducted
from the Premises, and said taking lasts for ninety (90) days or more, Tenant
shall have the option, to be exercised only in writing within thirty (30) days
after Landlord shall have given Tenant written notice of such taking (or in the
absence of such notice, within thirty (30) days after the condemning authority
shall have taken possession), to terminate this Lease as of the date the
condemning authority takes such possession. If a taking lasts for less than
ninety (90) days, Tenant's rent shall be abated during said period but Tenant
shall not have the right to terminate this Lease. If Tenant does not terminate
this Lease in accordance with the foregoing, this Lease shall remain in full
force and effect as to the portion of the Premises remaining, except that the
rent and Tenant's Share of Operating Expenses shall be reduced in the proportion
that the usable floor area of the Premises taken bears to the total usable floor
area of the Premises. Common Areas taken shall be excluded from the Common
Areas usable by Tenant and no reduction of rent shall occur with respect thereto
or by reason thereof. Landlord shall have the option in its sole discretion to
terminate this Lease as of the taking of possession by the condemning authority,
by giving written notice to Tenant of such election within thirty (30) days
after receipt of notice of a taking by condemnation of any part of the Premises
or the Project. Any award for the taking of all or any part of the Premises or
the Project under the power of eminent domain or any payment made under threat
of the exercise of such power shall be the property of Landlord, whether such
award shall be made as compensation for diminution in value of the leasehold,
for good will, for the taking of the fee, as severance damages, or as damages
for tenant improvements; provided, however, that Tenant shall be entitled to any
separate award for loss of or damage to Tenant's removable personal property and
for moving expenses. In the event that this Lease is not terminated by reason
of such condemnation, and subject to the requirements of any lender that has
made a loan to Landlord encumbering the Project, Landlord shall to the extent of
severance damages received by Landlord in connection with such condemnation,
repair any damage to the Project caused by such condemnation except to the
extent that Tenant has been reimbursed therefor by the condemning authority.
Tenant shall pay any amount in excess of such severance damages required to
complete
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such repair. This section, not general principles of law, shall govern the
rights and obligations of Landlord and Tenant with respect to the condemnation
of all or any portion of the Project.
16. Vehicle Parking; Use of Parking Facilities. During the term and subject
to the rules and regulations attached hereto as Exhibit "C," as modified by
Landlord from time to time (the "Rules"), Tenant shall be entitled to use the
number of parking spaces set forth in section 1.15 in the parking facility of
the Project. Landlord may, in its sole discretion, assign tandem parking spaces
to Tenant and designate the location of any reserved parking spaces. For
purposes of this Lease, a "parking space" refers to the space in which one (1)
motor vehicle is intended to park (e.g., a tandem parking stall includes two
tandem parking spaces). Landlord reserves the right at any time to relocate
Tenant's reserved and unreserved parking spaces. If Tenant commits or allows in
the parking facility any of the activities prohibited by the Lease or the Rules,
then Landlord shall have the right, without notice, in addition to such other
rights and remedies that it may have, to remove or tow away the vehicle involved
and charge the cost to Tenant, which cost shall be immediately payable by Tenant
upon demand by Landlord. Tenant shall not transfer, assign, or otherwise convey
its parking rights separate and apart from this Lease.
17. Broker's Fee. Tenant and Landlord each represent and warrant to the other
that neither has had any dealings or entered into any agreements with any
person, entity, broker or finder other than the persons, if any, listed in
section 1.17, in connection with the negotiation of this Lease, and no other
broker, person, or entity is entitled to any commission or finder's fee in
connection with the negotiation of this Lease, and Tenant and Landlord each
agree to indemnify, defend and hold the other harmless from and against any
claims, damages, costs, expenses, attorneys' fees or liability for compensation
or charges which may be claimed by any such unnamed broker, finder or other
similar party by reason of any dealings, actions or agreements of the
indemnifying party.
18. Estoppel Certificate.
18.1 Delivery of Certificate. Tenant shall from time to time upon not less
than ten (10) business days' prior written notice from Landlord execute,
acknowledge and deliver to Landlord a statement in writing certifying such
information as Landlord may reasonably request including, but not limited to,
the following: (a) that this Lease is unmodified and in full force and effect
(or, if modified, stating the nature of such modification and certifying that
this Lease, as so modified, is in full force and effect) (b) the date to which
the Base Rent and other charges are paid in advance and the amounts so payable,
(c) that there are not, to Tenant's knowledge, any uncured defaults or
unfulfilled obligations on the part of Landlord, or specifying such defaults or
unfulfilled obligations, if any are claimed, (d) that all tenant improvements to
be constructed by Landlord, if any, have been completed in accordance with
Landlord's obligations and (e) that Tenant has taken possession of the Premises.
Any such statement may be conclusively relied upon by any prospective purchaser
or encumbrancer of the Project.
18.2 Failure to Deliver Certificate. At Landlord's option, the failure of
Tenant to deliver such statement within such time shall constitute a material
default of Tenant hereunder, or it shall be conclusive upon Tenant that (a) this
Lease is in full force and effect, without modification except as may be
represented by Landlord, (b) there are no uncured defaults in Landlord's
performance, (c) not more than one month's Base Rent has been paid in advance,
(d) all tenant improvements to be constructed by Landlord, if any, have been
completed in accordance with Landlord's obligations and (e) Tenant has taken
possession of the Premises.
19. Financial Information. From time to time, at Landlord's request, Tenant
shall cause the following financial information to be delivered to Landlord, at
Tenant's sole cost and expense, upon not less than ten (10) days' advance
written notice from Landlord: (a) a current financial statement for Tenant and
Tenant's financial statements for the previous two accounting years, (b) a
current financial statement for any guarantor(s) of this Lease and the
guarantor'(s) financial statements for the previous two accounting years and (c)
such other financial information pertaining to Tenant or any guarantor as
Landlord or any lender or purchaser of Landlord may reasonably request. All
financial statements shall be prepared in accordance with generally accepted
accounting principals consistently applied and, if such is the normal practice
of Tenant, shall be audited by an independent certified public accountant.
Tenant hereby authorizes Landlord, from time to time, without notice to Tenant,
to obtain a credit report or credit history on Tenant from any credit reporting
company. Landlord shall not request financial statements from Tenant more than
once every six (6) months and Landlord or Landlord's lender, accounts,
attorneys, financial representatives or agents, or prospective purchasers shall
keep the information contained therein in confidence, subject to order by any
court, governmental agency or other organization having jurisdiction over
Landlord. Furthermore, Tenant's obligations with respect to Financial
Statements shall be limited to Tenant's Financial Statements existing as of the
time of the request.
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20. Landlord's Liability. Tenant acknowledges that Landlord shall have the
right to transfer all or any portion of its interest in the Project and to
assign this Lease to the transferee. Tenant agrees that in the event of such a
transfer Landlord shall automatically be released from all future liability
under this Lease; and Tenant hereby agrees to look solely to Landlord's
transferee for the performance of Landlord's obligations hereunder after the
date of the transfer. Upon such a transfer, Landlord shall, at its option,
return Tenant's security deposit to Tenant or transfer Tenant's security deposit
to Landlord's transferee and, in either event, Landlord shall have no further
liability to Tenant for the return of its security deposit. Subject to the
rights of any lender holding a mortgage or deed of trust encumbering all or part
of the Project, Tenant agrees to look solely to Landlord's equity interest in
the Project for the collection of any judgment requiring the payment of money by
Landlord arising out of (a) Landlord's failure to perform its obligations under
this Lease or (b) the negligence or wilful misconduct of Landlord, its partners,
employees and agents. No other property or assets of Landlord shall be subject
to levy, execution or other enforcement procedure for the satisfaction of any
judgment or writ obtained by Tenant against Landlord. No partner, employee or
agent of Landlord shall be personally liable for the performance of Landlord's
obligations hereunder or be named as a party in any lawsuit arising out of or
related to, directly or indirectly, this Lease and the obligations of Landlord
hereunder. The obligations under this Lease do not constitute personal
obligations of the individual partners of Landlord, if any, and Tenant shall not
seek recourse against the individual partners of Landlord or their assets.
21. Indemnity. To the extent allowed by law, Tenant hereby agrees to
indemnify, defend and hold harmless Landlord and its employees, partners,
agents, contractors, lenders and ground lessors (said persons and entities are
hereinafter collectively referred to as the "Indemnified Parties") from and
against any and all liability, loss, cost, damage, claims, loss of rents, liens,
judgments, penalties, fines, settlement costs, investigation costs, the cost of
consultants and experts, attorneys fees, court costs and other legal expenses,
the effects of environmental contamination, the cost of environmental testing,
the removal, remediation and/or abatement of Hazardous Substances (as defined
below), insurance policy deductibles and other expenses (hereinafter
collectively referred to as "Damages") arising out of or related to an
"Indemnified Matter" (as defined below). For purposes of this section 21, an
"Indemnified Matter" shall mean any matter for which one or more of the
Indemnified Parties incurs liability or Damages if the liability or Damages
arise out of or involve, directly or indirectly, (a) Tenant's or its employees,
agents, contractors or invitees (all of said persons or entities are hereinafter
collectively referred to as "Tenant Parties") use or occupancy of the Premises
or the Project, (b) any act, omission or neglect of a Tenant Party, (c) Tenant's
failure to perform any of its obligations under the Lease, (d) the existence,
use or disposal of any Hazardous Substance (as defined in section 23 below)
brought on to the project by a Tenant Party, or (e) any other matters for which
Tenant has agreed to indemnify Landlord pursuant to any other provision of this
Lease. Tenant's obligations hereunder shall include, but shall not be limited
to (f) compensating the Indemnified Parties for Damages arising out of
Indemnified Matters within ten (10) days after written demand from an
Indemnified Party and (g) providing a defense, with counsel reasonably
satisfactory to the Indemnified Party, at Tenant's sole expense, within ten (10)
days after written demand from the Indemnified Party, of any claims, action or
proceeding arising out of or relating to an Indemnified Matter whether or not
litigated or reduced to judgment and whether or not well founded. If Tenant is
obligated to compensate an Indemnified Party for Damages arising out of an
Indemnified Matter, Landlord shall have the immediate and unconditional right,
but not the obligation, without notice or demand to Tenant, to pay the damages
and Tenant shall, upon ten (10) days advance written notice from Landlord,
reimburse Landlord for the costs incurred by Landlord. By way of example, and
not limitation, Landlord shall have the immediate and unconditional right to
cause any damages to the Common Areas, another tenant's premises or to any other
part of the Project to be repaired and to compensate other tenants of the
Project or other persons or entities for Damages arising out of an Indemnified
Matter. The Indemnified Parties need not first pay any Damages to be
indemnified hereunder. Tenant's obligations under this section shall not be
released, reduced or otherwise limited because one or more of the Indemnified
Parties are or may be actively or passively negligent with respect to an
Indemnified Matter or because an Indemnified Party is or was partially
responsible for the Damages incurred. This indemnity is intended to apply to
the fullest extent permitted by applicable law. Tenant's obligations under this
section shall survive the expiration or termination of this Lease unless
specifically waived in writing by Landlord after said expiration or termination.
22. Signs. Tenant shall not place any sign upon the Premises (including on the
inside or the outside of the doors or windows of the Premises) or the Project
without Landlord's prior written consent, which may be given or withheld in
Landlord's sole discretion. Landlord shall have the right to place any sign it
deems appropriate on any portion of the Project except the interior of the
Premises. Any sign Landlord permits Tenant to place upon the Premises shall be
maintained by Tenant, at Tenant's sole expense. If Landlord permits Tenant to
include its name in the Building's directory, the cost of placing Tenant's name
in the directory and the cost of any subsequent modifications thereto shall be
paid by Tenant, at Tenant's sole expense.
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23. Hazardous Substances.
23.1 Definition and Consent. The term "Hazardous Substance" as used in
this Lease shall mean any product, substance, chemical, material or waste whose
presence, nature, quantity and/or intensity of existence, use, manufacture,
disposal, transportation, spill, release or affect, either by itself or in
combination with other materials expected to be on the Premises, is either: (a)
potentially injurious to the public health, safety or welfare, the environment
or the Premises, (b) regulated or monitored by any governmental entity, (c) a
basis for liability of Landlord to any governmental entity or third party under
any federal, state or local statute or common law theory or (d) defined as a
hazardous material or substance by any federal, state or local law or
regulation. Except for small quantities or ordinary office supplies such as
copier toner, liquid paper, glue, ink and common household cleaning materials,
Tenant shall not cause or permit any Hazardous Substance to be brought, kept, or
used in or about the Premises or the Project by Tenant, its agents, employees,
contractors or invitees.
23.2 Duty to Inform Landlord. If Tenant knows, or has reasonable cause to
believe, that a Hazardous Substance, or a condition involving or resulting from
same, has come to be located in, on or under or about the Premises or the
Project, Tenant shall immediately give written notice of such fact to Landlord.
Tenant shall also immediately give Landlord (without demand by Landlord) a copy
of any statement, report, notice, registration, application, permit, license,
given to or received from, any governmental authority or private party, or
persons entering or occupying the Premises, concerning the presence, spill,
release, discharge of or exposure to, any Hazardous Substance or contamination
in, on or about the Premises or the Project.
23.3 Inspection; Compliance. Landlord and Landlord's employees, agent,
contractors and lenders shall have the right to enter the Premises at any time
in the case of an emergency, and otherwise at reasonable times (upon reasonable
notice), for the purpose of inspecting the condition of the Premises and for
verifying compliance by Tenant with this section 23. Landlord shall have the
right to employ experts and/or consultants in connection with its examination of
the Premises and with respect to the installation, operation, use, monitoring,
maintenance, or removal of any Hazardous Substance on or from the Premises. The
costs and expenses of any such inspections shall be paid by the party requesting
same, unless a contamination, caused or materially contributed to by Tenant, is
found to exist or be imminent, or unless the inspection is requested or ordered
by governmental authority as the result of any such existing or imminent
violation or contamination. In any such case, Tenant shall upon request
reimburse Landlord for the cost and expenses of such inspection.
24. Intentionally Deleted.
25. Tenant Improvements. Tenant acknowledges and agrees that except as
otherwise set forth in this Lease, Landlord shall not be obligated to construct
any tenant improvements on behalf of Tenant and it is specifically understood
and agreed that Landlord has no obligation and has made no promises to alter,
remodel, improve, renovate, repair or decorate the Premises, the Project, or any
part thereof, or to provide any allowance for such purposes, and that no
representations respecting the condition of the Premises or the Project have
been made by Landlord to Tenant.
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26. Subordination.
26.1 Effect of Subordination. This Lease, and any Option (as defined in
section 27 below) granted hereby, upon Landlord's written election, shall be
subject and subordinate to any ground lease, mortgage, deed of trust, or any
other hypothecation or security now or hereafter placed upon the Project and to
any and all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements and extensions thereof.
Notwithstanding such subordination, Tenant's right to quiet possession of the
Premises shall not be disturbed if Tenant is not in default and so long as
Tenant shall pay the rent and observe and perform all of the provisions of this
Lease, unless this Lease is otherwise terminated pursuant to its terms. At the
request of any mortgagee, trustee or ground lessor, Tenant shall attorn to such
person or entity. Landlord shall use commercially reasonable efforts to obtain
a commercially reasonable subordination and nondisturbance and attornment
agreement effecting the terms hereof from any mortgagee, trustee or ground
lessor. If any mortgagee, trustee or ground lessor shall elect to have this
Lease and any Option granted hereby prior to the lien of its mortgage, deed of
trust or ground lease, and shall give written notice thereof to Tenant, this
Lease and such Options shall be deemed prior to such mortgage, deed of trust or
ground lease, whether this Lease or such Options are dated prior or subsequent
to the date of said mortgage, deed of trust or ground lease or the date of
recording thereof. In the event of the foreclosure of a security device, the
new owner shall not (a) be liable for any act or omission of any prior landlord
or with respect to events occurring prior to its acquisition of title, (b) be
liable for the breach of this Lease by any prior landlord, (c) be subject to any
offsets or defenses which Tenant may have against the prior landlord or (d) be
liable to Tenant for the return of its security deposit.
26.2 Execution of Documents. Tenant agrees to execute and acknowledge any
documents Landlord reasonably requests that Tenant execute to effectuate an
attornment, a subordination, or to make this Lease or any Option granted herein
prior to the lien of any mortgage, deed of trust or ground lease, as the case
may be. Tenant acknowledges that the subordination agreement may give the
lender the right, in the lender's sole discretion, to continue this Lease in
effect or to terminate this Lease in the event of a foreclosure sale. Tenant's
failure to execute such documents within ten (10) business days after written
demand shall constitute a material default by Tenant hereunder or, at Landlord's
option, Landlord shall have the right to execute such documents on behalf of
Tenant as Tenant's attorney-in-fact. Tenant does hereby make, constitute and
irrevocably appoint Landlord as Tenant's attorney-in-fact and in Tenant's name,
place and stead, to execute such documents in accordance with this section 26.2.
27. Options.
27.1 Definition. As used in this Lease, the word "Option" shall mean the
right or option to extend the term of this Lease. Any Option granted to Tenant
by Landlord must be evidenced by a written option agreement attached to this
Lease as a rider or addendum or said option shall be of no force or effect.
27.2 Options Personal. Each Option granted to Tenant in this Lease, if
any, is personal to the original Tenant (and assignee pursuant to any Permitted
Transfer) and may be exercised only by the original Tenant (or assignee pursuant
to any Permitted Transfer) while occupying the entire Premises and may not be
exercised or be assigned, voluntarily or involuntarily, by or to any person or
entity other than Tenant (or assignee pursuant to any Permitted Transfer). The
Option, if any, herein granted to Tenant are not assignable separate and apart
from this Lease, nor may any Option be separated from this Lease in any manner,
either by reservation or otherwise. If at any time an Option is exercisable by
Tenant, the Lease has been assigned, or a sublease exists as to any portion of
the Premises, the Option shall be deemed null and void and neither Tenant nor
any assignee or subtenant shall have the right to exercise the Option.
27.3 Multiple Options. In the event that Tenant has multiple Options to
extend or renew this Lease a later Option cannot be exercised unless the prior
Option to extend or renew this Lease has been so exercised.
27.4 Effect of Default on Option. Tenant shall have no right to exercise
an Option (i) during the time commencing from the date Landlord gives to Tenant
a notice of default pursuant to section 13.1 and continuing until the
noncompliance alleged in said notice of default is cured, or (ii) if Tenant is
in default of any of the terms, covenants or conditions of this Lease. The
period of time within which an Option may be exercised shall not be extended or
enlarged by reason of Tenant's inability to exercise an Option because of the
provisions of this section 27.4.
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27.5 Limitations on Option. Notwithstanding anything to the contrary
contained in any rider or addendum to this Lease, any Option, rights of first
refusal or rights of first offer granted hereunder shall be subject and
secondary to Landlord's right to first offer and lease any such space to any
tenant who is then occupying or leasing such space at the time the space becomes
available for leasing and shall be subject and subordinated to any other
options, rights of first refusal or rights of first offer previously given to
any other person or entity.
27.6 Notice of Exercise of Option. Notwithstanding anything to the
contrary contained in section 41, Tenant may only exercise an Option by
delivering its written notice of exercise to Landlord by certified mail, return
receipt and date of delivery requested. It shall be Tenant's obligation to
prove that such notice was so sent in a timely manner and was delivered to
Landlord by the U.S. Postal Service.
28. Landlord Reservations. Landlord shall have the right: (a) to change the
name and address of the Project or Building upon not less than ninety (90) days
prior written notice; (b) to, at Tenant's expense, provide and install Building
standard graphics on or near the door of the Premises and such portions of the
Common Areas as Landlord shall determine, in Landlord's sole discretion; (c) to
permit any tenant the exclusive right to conduct any business as long as such
exclusive right does not conflict with any rights expressly given herein; and
(d) to place signs, notices or displays upon the roof, interior, exterior or
Common Areas of the Project. Tenant shall not use a representation
(photographic or otherwise) of the Building or the Project or their name(s) in
connection with Tenant's business or suffer or permit anyone, except in an
emergency, to go upon the roof of the Building. Landlord reserves the right to
use the exterior walls of the Premises, and the area beneath, adjacent to and
above the Premises together with the right to install, use, maintain and replace
equipment, machinery, pipes, conduits and wiring through the Premises, which
serve other parts of the Project provided that Landlord's use does not
unreasonably interfere with Tenant's use of the Premises.
29. Changes to Project. Landlord shall have the right, in Landlord's sole
discretion, from time to time, to make changes to the size, shape, location,
number and extent of the improvements comprising the Project (hereinafter
referred to as "Changes") including, but not limited to, the Project interior
and exterior, the Common Areas, elevators, escalators, restrooms, HVAC,
electrical systems, communication systems, fire protection and detection
systems, plumbing systems, security systems, parking control systems, driveways,
entrances, parking spaces, parking areas and landscaped areas. In connection
with the Changes, Landlord may, among other things, erect scaffolding or other
necessary structures at the Project, limit or eliminate access to portions of
the Project, including portions of the Common Areas, or perform work in the
Building, which work may create noise, dust or leave debris in the Building.
Tenant hereby agrees that such Changes and Landlord's actions in connection with
such Changes shall in no way constitute a constructive eviction of Tenant or
entitle Tenant to any abatement of rent. Landlord shall have no responsibility
or for any reason be liable to Tenant for any direct or indirect injury to or
interference with Tenant's business arising from the Changes, nor shall Tenant
be entitled to any compensation or damages from Landlord for any inconvenience
or annoyance occasioned by such Changes or Landlord's actions in connection with
such Changes.
30. Substitution of Other Premises. Landlord shall have the right at any time
to relocate Tenant to any other leasable space in the Project provided that said
space shall be approximately the same size as the Premises and that Landlord
shall pay the cost of moving Tenant's furniture and equipment to the new space.
The new space shall include tenant improvements that are substantially
equivalent to the tenant improvements contained in the Premises, and the cost of
any required tenant improvements shall be paid by Landlord. If Landlord elects
to relocate Tenant, Landlord shall give Tenant written notice of its election
and Tenant shall have thirty (30) days thereafter to agree to be relocated in
accordance with the terms and conditions of this section 30 or to elect to
terminate this Lease. If Tenant elects to terminate this Lease within said
thirty (30) day period or fails to respond to Landlord's notice within said
thirty (30) day period, this Lease shall then terminate on the date which is
sixty (60) days after the date Landlord gave Tenant its written notice electing
to relocate Tenant. Landlord shall have no liability to Tenant as a result of
Tenant's election to terminate this Lease. Prior to said termination, Landlord
and Tenant shall perform all of their obligations under this Lease. If Tenant
elects to be relocated, Landlord shall deliver substitute space to Tenant not
more than one hundred eighty (180) days after (a) Tenant agrees to be relocated
and (b) approves plans for the construction of required tenant improvements at
the new space, if any. Tenant shall not unreasonably withhold or delay its
approval of any plans for the construction of tenant improvements. Landlord
shall give Tenant thirty (30) days advance notice of the estimated move in date.
Prior to the date that Tenant is moved to the new space, Tenant shall remain in
the Premises and shall continue to perform all of its obligations under this
Lease. After Tenant moves into the new space, this Lease shall remain in full
force and effect and be deemed applicable to such new space, except as to Base
Rent, Tenant's Share of Operating Expense increases and the number of parking
spaces Tenant shall be entitled to use, all of which shall be adjusted based on
the relationship between the number of rentable square feet in the original
Premises and the number of rentable square feet
28
in the substituted space. Upon Tenant's election to be relocated, Landlord and
Tenant shall amend this Lease to provide for the relocation of the Premises.
31. Holding Over. If Tenant remains in possession of the Premises or any part
thereof after the expiration or earlier termination of the term hereof with
Landlord's consent, such occupancy shall be a tenancy from month to month upon
all the terms and conditions of this Lease pertaining to the obligations of
Tenant, except that the Base Rent payable for the first thirty (30) day period
of such holdover shall be one hundred fifty (150%) percent of the Base Rent Base
Rent payable immediately preceding the termination date of this Lease and after
such thirty (30) day period of holdover, the Base Rent payable shall be two
hundred percent (200%) of the Base Rent payable immediately preceding the
termination date of this Lease and all Options, if any, shall be deemed
terminated and be of no further effect. If Tenant remains in possession of the
Premises or any part thereof after the expiration of the term hereof without
Landlord's consent, Tenant shall, at Landlord's option, be treated as a tenant
at sufferance or a trespasser. Nothing contained herein shall be construed to
constitute Landlord's consent to Tenant holding over at the expiration or
earlier termination of the Lease term or to give Tenant the right to hold over
after the expiration or earlier termination of the Lease term. Tenant hereby
agrees to indemnify, hold harmless and defend Landlord from any cost, loss,
claim or liability (including attorneys' fees) Landlord may incur as a result of
Tenant's failure to surrender possession of the Premises to Landlord upon the
termination of this Lease.
32. Landlord's Access.
32.1 Access. Landlord and Landlord's agents, contractors and employees
shall have the right to enter the Premises at reasonable times (and upon
reasonable notice) for the purpose inspecting the Premises, performing any
services required of Landlord, showing the Premises to prospective purchasers,
lenders, or tenants, undertaking safety measures and making alterations,
repairs, improvements or additions to the Premises or to the Project. In the
event of an emergency, Landlord may gain access to the Premises by any
reasonable means, and Landlord shall not be liable to Tenant for damage to the
Premises or to Tenant's property resulting from such access. Landlord may at
any time place on or about the Building for sale or for lease signs and Landlord
may at any time during the last one hundred twenty (120) days of the term hereof
place on or about the Premises for lease signs.
32.2 Keys. Landlord shall have the right to retain keys and electric
codes or card keys to the locks and card key access systems and other security
systems on the entry doors to the Premises and all interior doors at the
Premises. At Landlord's option, Landlord may require Tenant to obtain all keys
to door locks at the Premises from Landlord's engineering staff or Landlord's
locksmith and to only use Landlord's engineering staff or Landlord's locksmith
to change locks at the Premises. Tenant shall pay Landlord's or its locksmith's
standard charge for all keys and other services obtained from Landlord's
engineering staff or locksmith.
33. Security Measures. Tenant hereby acknowledges that Landlord shall have no
obligation whatsoever to provide guard service or other security measures for
the benefit of the Premises or the Project, and Landlord shall have no liability
to Tenant due to its failure to provide such services. Tenant assumes all
responsibility for the protection of Tenant, its agents, employees, contractors
and invitees and the property of Tenant and of Tenant's agents, employees,
contractors and invitees from acts of third parties. Nothing herein contained
shall prevent Landlord, at Landlord's sole option, from implementing security
measures for the Project or any part thereof, in which event Tenant shall
participate in such security measures and the cost thereof shall be included
within the definition of Operating Expenses, and Landlord shall have no
liability to Tenant and its agents, employees, contractors and invitees arising
out of Landlord's negligent provision of security measures. Landlord shall have
the right, but not the obligation, to require all persons entering or leaving
the Project to identify themselves to a security guard and to reasonably
establish that such person should be permitted access to the Project.
34. Easements. Landlord reserves to itself the right, from time to time, to
grant such easements, rights and dedications that Landlord deems necessary or
desirable, and to cause the recordation of parcel maps and restrictions, so long
as such easements, rights, dedications, maps and restrictions do not
unreasonably interfere with the use of the Premises by Tenant. Tenant shall
sign any of the aforementioned documents within ten (10) business days after
Landlord's request and Tenant's failure to do so shall constitute a material
default by Tenant. The obstruction of Tenant's view, air, or light by any
structure erected in the vicinity of the Project, whether by Landlord or third
parties, shall in no way affect this Lease or impose any liability upon
Landlord.
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35. Transportation Management. Tenant shall fully comply at its sole expense
with all present or future programs implemented or required by any governmental
or quasi-governmental entity or reasonably required by Landlord to manage
parking, transportation, air pollution, or traffic in and around the Project or
the metropolitan area in which the Project is located.
36. Severability. The invalidity of any provision of this Lease as determined
by a court of competent jurisdiction shall in no way affect the validity of any
other provision hereof.
37. Time of Essence. Time is of the essence with respect to each of the
obligations to be performed by Tenant and Landlord under this Lease.
38. Definition of Additional Rent. All monetary obligations of Tenant to
Landlord under the terms of this Lease, including, but not limited to, Base
Rent, Tenant's Share of Operating Expenses, parking charges (if any), late
charges and charges for after hours HVAC shall be deemed to be rent.
39. Incorporation of Prior Agreements. This Lease and the attachments listed
in section 1.18 contain all agreements of the parties with respect to the lease
of the Premises and any other matter mentioned herein. No prior or
contemporaneous agreement or understanding pertaining to any such matter shall
be effective. Except as otherwise stated in this Lease, Tenant hereby
acknowledges that no real estate broker nor Landlord or any employee or agents
of any of said persons has made any oral or written warranties or
representations to Tenant concerning the condition or use by Tenant of the
Premises or the Project or concerning any other matter addressed by this Lease.
40. Amendments. This Lease may be modified in writing only, signed by the
parties in interest at the time of the modification.
41. Notices. Subject to the requirements of section 27.6 of this Lease, and
except for notices required in sections 23.3 and 32.1, all notices required or
permitted by this Lease shall be in writing and may be delivered (a) in person
(by hand, by messenger or by courier service), (b) by U.S. Postal Service
regular mail, (c) by U.S. Postal Service certified mail, return receipt
requested, (d) by U.S. Postal Service Express Mail, Federal Express or other
overnight courier, or (e) by facsimile transmission, and shall be deemed
sufficiently given if served in a manner specified in this section 41. Any
notice permitted or required hereunder, and any notice to pay rent or quit or
similar notice, shall be deemed personally delivered to Tenant on the date the
notice is personally delivered to any employee of Tenant at the Premises. The
addresses set forth in section 1.19 of this Lease shall be the address of each
party of notice purposes. Landlord or Tenant may by written notice to the other
specify a different address for notices purposes, except that upon Tenant's
taking possession of the Premises, the Premises shall constitute Tenant's
address for the purpose of mailing or delivering notices to Tenant. A copy of
all notices required or permitted to be given to Landlord hereunder shall be
concurrently transmitted to such party or parties at such addresses as Landlord
may from time to time hereinafter designate by written notice to Tenant. Any
notice sent by regular mail or by certified mail, return receipt requested,
shall be deemed given three (3) days after deposited with the U.S. Postal
Service. Notices delivered by U.S. Express Mail, Federal Express or other
courier shall be deemed given on the date delivered by the carrier to the
appropriate party's address for notice purposes. If any notice is transmitted
by facsimile transmission, the notice shall be deemed delivered upon telephone
confirmation of receipt of the transmission thereof at the appropriate party's
address for notice purposes. A copy of all notices delivered to a party by
facsimile transmission shall also be mailed to the party on the date the
facsimile transmission is completed. If notice is received on Saturday, Sunday
or a legal holiday, it shall be deemed received on the next business day.
Nothing contained herein shall be construed to limit Landlord's right to serve
any notice to pay rent or quit or similar notice by any method permitted by
applicable law, and any such notice shall be effective if served in accordance
with any method permitted by applicable law whether or not the requirements of
this section have been met.
42. Waivers. No waiver by Landlord or Tenant of any provision hereof shall be
deemed a waiver of any other provision hereof or of any subsequent breach by
Landlord or Tenant of the same or any other provision. Landlord's consent to,
or approval of, any act shall not be deemed to render unnecessary the obtaining
of Landlord's consent to or approval of any subsequent act by Tenant. The
acceptance of rent hereunder by Landlord shall not be a waiver of any preceding
breach by Tenant of any provision hereof, other than the failure of Tenant to
pay the particular rent so accepted, regardless of Landlord's knowledge of such
preceding breach at the time of acceptance of such rent. No acceptance by
Landlord of partial payment of any sum due from Tenant shall be deemed a waiver
by Landlord of its right
30
to receive the full amount due, nor shall any endorsement or statement on any
check or accompanying letter from Tenant be deemed an accord and satisfaction.
Tenant hereby waives for Tenant and all those claiming under Tenant all rights
now or hereafter existing to redeem by order or judgment of any court or by
legal process or writ, Tenant's right of occupancy of the Premises after any
termination of this Lease or to otherwise obtain relief from the forfeiture or
termination of this Lease.
43. Covenants. This Lease shall be construed as though the covenants contained
herein are independent and not dependent and each party hereby waives the
benefit of any statute to the contrary. All provisions of this Lease to be
observed or performed are both covenants and conditions.
44. Binding Effect; Choice of Law. Subject to any provision hereof restricting
assignment or subletting by Tenant, this Lease shall bind the parties, their
heirs, personal representatives, successors and assigns. This Lease shall be
governed by the laws of the state in which the Project is located and any
litigation concerning this Lease between the parties hereto shall be initiated
in the county in which the Project is located.
45. Attorneys' Fees. If Landlord or Tenant brings an action to enforce the
terms hereof or declare rights hereunder, the prevailing party in any such
action, or appeal thereon, shall be entitled to its reasonable attorneys' fees
and court costs to be paid by the losing party as fixed by the court in the same
or separate suit, and whether or not such action is pursued to decision or
judgment. The attorneys' fee award shall not be computed in accordance with any
court fee schedule, but shall be such as to fully reimburse all attorneys' fees
and court costs reasonably incurred in good faith. Landlord shall be entitled
to reasonable attorneys' fees and all other costs and expenses incurred in the
preparation and service of notices of default and consultations in connection
therewith, whether or not a legal action is subsequently commenced in connection
with such default. Landlord and Tenant agree that attorneys' fees incurred with
respect to defaults and bankruptcy are actual pecuniary losses within the
meaning of section 365(b)(1)(B) of the Bankruptcy Code or any successor statute.
46. Auctions. Tenant shall not conduct, nor permit to be conducted, either
voluntarily or involuntarily, any auction upon the Premises or the Common Areas.
The holding of any auction on the Premises or Common Areas in violation of this
section 46 shall constitute a material default hereunder.
47. Exemption of Landlord from Liability. To the extent allowed by law, Tenant
hereby agrees that Landlord shall not be liable for injury to Tenant's business
or any loss of income therefrom or for loss of or damage to the merchandise,
tenant improvements, fixtures, furniture, equipment, computers, files,
automobiles, or other property of Tenant, Tenant's employees, agents,
contractors or invitees, or any other person in or about the Project, nor shall
Landlord be liable for injury to the person of Tenant, Tenant's employees,
agents, contractors or invitees, whether such damage or injury is caused by or
results from any cause whatsoever including, but not limited to, theft, criminal
activity at the Project, negligent security measures, bombings or bomb scares,
Hazardous Substances, fire, steam, electricity, gas, water or rain, flooding,
breakage of pipes, sprinklers, plumbing, air conditioning or lighting fixtures,
or from any other cause, whether said damage or injury results from conditions
arising upon the Premises or upon other portions of the Project, or from other
sources or places, or from new construction or the repair, alteration or
improvement of any part of the Project, and regardless of whether the cause of
the damage or injury arises out of Landlord's or its employees, agents or
contractors negligent or intentional acts. Landlord shall not be liable for any
damages arising from any act or neglect of any employees, agents, contractors or
invitees of any other tenant, occupant or user of the Project, nor from the
failure of Landlord to enforce the provisions of the lease of any other tenant
of the Project. Tenant, as a material part of the consideration to Landlord
hereunder, hereby assumes all risk of damage to Tenant's property or business or
injury to persons, in, upon or about the Project arising from any cause,
including Landlord's negligence or the negligence of its employees, agents or
contractors, and Tenant hereby waives all claims in respect thereof against
Landlord, its employees, agents and contractors.
48. Merger. The voluntary or other surrender of this Lease by Tenant, or a
mutual cancellation thereof, or a termination by Landlord, shall not result in
the merger of Landlord's and Tenant's estates, and shall, at the option of
Landlord, terminate all or any existing subtenancies or may, at the option of
Landlord, operate as an assignment to Landlord of any or all of such
subtenancies.
49. Quiet Possession. Subject to the other terms and conditions of this Lease,
and the rights of any lender, and provided Tenant is not in default hereunder,
Tenant shall have quiet possession of the Premises for the entire term hereof
subject to all of the provisions of this Lease.
31
50. Authority. If Tenant is a corporation, trust, or general or limited
partnership, Tenant, and each individual executing this Lease on behalf of such
entity, represents and warrants that such individual is duly authorized to
execute and deliver this Lease on behalf of said entity, that said entity is
duly authorized to enter into this Lease, and that this Lease is enforceable
against said entity in accordance with its terms. If Tenant is a corporation,
trust or partnership, Tenant shall deliver to Landlord upon demand evidence of
such authority satisfactory to Landlord.
51. Conflict. Except as otherwise provided herein to the contrary, any
conflict between the printed provisions, exhibits, addenda or riders of this
Lease and the typewritten or handwritten provisions, if any, shall be controlled
by the typewritten or handwritten provisions.
52. Multiple Parties. If more than one person or entity is named as Tenant
herein, the obligations of Tenant shall be the joint and several responsibility
of all persons or entities named herein as Tenant. Service of a notice in
accordance with section 41 on one Tenant shall be deemed service of notice on
all Tenants.
53. Interpretation. This Lease shall be interpreted as if it was prepared by
both parties and ambiguities shall not be resolved in favor of Tenant because
all or a portion of this Lease was prepared by Landlord. The captions contained
in this Lease are for convenience only and shall not be deemed to limit or alter
the meaning of this Lease. As used in this Lease the words tenant and landlord
include the plural as well as the singular. Words used in the neuter gender
include the masculine and feminine gender.
54. Prohibition Against Recording. Neither this Lease, nor any memorandum,
affidavit or other writing with respect thereto, shall be recorded by Tenant or
by anyone acting through, under or on behalf of Tenant. Landlord shall have the
right to record a memorandum of this Lease, and Tenant shall execute,
acknowledge and deliver to Landlord for recording any memorandum prepared by
Landlord.
55. Relationship of Parties. Nothing contained in this Lease shall be deemed
or construed by the parties hereto or by any third party to create the
relationship of principal and agent, partnership, joint venturer or any
association between Landlord and Tenant.
56. Rules and Regulations. Tenant agrees to abide by and conform to the Rules
and to cause its employees, suppliers, customers and invitees to so abide and
conform. Landlord shall have the right, from time to time, to modify, amend and
enforce the Rules in a non-discriminatory manner. Landlord shall not be
responsible to Tenant for the failure of other persons including, but not
limited to, other tenants, their agents, employees and invitees to comply with
the Rules.
57. Right to Lease. Landlord reserves the absolute right to effect such other
tenancies in the Project as Landlord in its sole discretion shall determine, and
Tenant is not relying on any representation that any specific tenant or number
of tenants will occupy the Project.
58. Intentionally Deleted.
59. Security for Performance of Tenant's Obligations. Notwithstanding any
security deposit held by Landlord pursuant to section 5, Tenant hereby agrees
that in the event of a default by Tenant, Landlord shall be entitled to seek and
obtain a writ of attachment and/or a temporary protective order and Tenant
hereby waives any rights or defenses to contest such a writ of attachment and/or
temporary protective order on the basis of any relevant law.
60. Attachments. The items listed in section 1.18 are a part of this Lease and
are incorporated herein by this reference.
61. Confidentiality. Tenant acknowledges and agrees that the terms of this
Lease are confidential and constitute propriety information of Landlord.
Disclosure of the terms hereof could adversely affect the ability of Landlord to
negotiate other leases with respect to the Project and may impair Landlord's
relationship with other tenants of the Project. Tenant agrees that it and its
partners, officers, directors, employees, brokers, and attorneys, if any, shall
not disclose the terms and conditions of this Lease to any other person or
entity without the prior written consent of Landlord which may be given or
withheld by Landlord, in Landlord's sole discretion. It is understood and
agreed that
32
damages alone would be an inadequate remedy for the breach of this provision by
Tenant, and Landlord shall also have the right to seek specific performance of
this provision and to seek injunctive relief to prevent its breach or continued
breach.
62. Costs Related to Tenant Requests. Tenant shall reimburse Landlord promptly
upon request for the costs and expenses incurred by Landlord as a result of any
Tenant request, for example, legal fees and expenses incurred to review an
assignment or subletting request or architectural and engineering fees incurred
to review a proposed alteration by Tenant.
63. WAIVER OF JURY TRIAL. LANDLORD AND TENANT HEREBY WAIVE THEIR RESPECTIVE
RIGHT TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, COUNTERCLAIM OR CROSS-
COMPLAINT IN ANY ACTION, PROCEEDING AND/OR HEARING BROUGHT BY EITHER LANDLORD
AGAINST TENANT OR TENANT AGAINST LANDLORD ON ANY MATTER WHATSOEVER ARISING OUT
OF, OR IN ANY WAY CONNECTED WITH, THIS LEASE, THE RELATIONSHIP OF LANDLORD AND
TENANT, TENANT'S USE OR OCCUPANCY OF THE PREMISES, OR ANY CLAIM OF INJURY OR
DAMAGE, OR THE ENFORCEMENT OF ANY REMEDY UNDER ANY LAW, STATUTE, OR REGULATION,
EMERGENCY OR OTHERWISE, NOW OR HEREAFTER IN EFFECT.
LANDLORD AND TENANT ACKNOWLEDGE THAT THEY HAVE CAREFULLY READ AND REVIEWED THIS
LEASE AND EACH TERM AND PROVISION CONTAINED HEREIN AND, BY EXECUTION OF THIS
LEASE, SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY
AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE
COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LANDLORD AND
TENANT WITH RESPECT TO THE PREMISES. TENANT ACKNOWLEDGES THAT IT HAS BEEN GIVEN
THE OPPORTUNITY TO HAVE THIS LEASE REVIEWED BY ITS LEGAL COUNSEL PRIOR TO ITS
EXECUTION. PREPARATION OF THIS LEASE BY LANDLORD OR LANDLORD'S AGENT AND
SUBMISSION OF SAME TO TENANT SHALL NOT BE DEEMED AN OFFER BY LANDLORD TO LEASE
THE PREMISES TO TENANT OR THE GRANT OF AN OPTION TO TENANT TO LEASE THE
PREMISES. THIS LEASE SHALL BECOME BINDING UPON LANDLORD ONLY WHEN FULLY
EXECUTED BY BOTH PARTIES AND WHEN LANDLORD HAS DELIVERED A FULLY EXECUTED
ORIGINAL OF THIS LEASE TO TENANT.
LANDLORD TENANT
THE REALTY ASSOCIATES FUND IV, L.P. NOOSH, INC.
By: REALTY ASSOCIATES FUND IV LLC
Its: General Partner
By: TA REALTY CORP. By:________________________
Its: Manager Name:______________________
By:_______________________ Its:______________, duly authorized
33
EXHIBIT A
FLOOR PLAN
----------
A-1
EXHIBIT B
VERIFICATION LETTER
-------------------
Noosh, Inc. ("Tenant") hereby certifies that it has entered into a lease with
The Realty Associates Fund IV, L.P., ("Landlord") and verifies the following
information as of the _______ day of ____________________________, 1999:
Address of Building: The Hillsite Building, 75 Second Avenue, Needham, Massachusetts 02192
Number of Rentable Square Feet in Premises: 4,230
Commencement Date: November 1, 1999
Lease Termination Date: October 31, 2002
Tenant's Percentage Share: 4.0%
Initial Base Rent: $122,670.00/ year and /$10,222.50/month
Billing Address for Tenant: Noosh, Inc.
3401 Hillview Avenue, Building B
Palo Alto, California 94304
Attention: Ann Marie Cady
Telephone Number: (650) 858-8300
Federal Tax I.D. No.: 77-0495080
Tenant acknowledges and agrees that all tenant improvements Landlord is
obligated to make to the Premises, if any, have been completed to Tenant's
satisfaction, that Tenant has accepted possession of the Premises, and that as
of the date hereof, there exist no offsets or defenses to the obligations of
Tenant under the Lease.
TENANT
NOOSH, INC.
By:____________________________
Name:__________________________
(print name)
Its:____________________, duly authorized
B-1
EXHIBIT C
RULES AND REGULATIONS
GENERAL RULES
-------------
Tenant shall faithfully observe and comply with the following Rules and
Regulations.
1. Tenant shall not alter any locks or install any new or additional locks or
bolts on any doors or windows of the Premises without obtaining Landlord's prior
written consent. Tenant shall bear the cost of any lock changes or repairs
required by Tenant. Keys required by Tenant must be obtained from Landlord at a
reasonable cost to be established by Landlord.
2. All doors opening to public corridors shall be kept closed at all times
except for normal ingress and egress to the Premises. Tenant shall assume any
and all responsibility for protecting the Premises from theft, robbery and
pilferage, which includes keeping doors locked and other means of entry to the
Premises closed.
3. Landlord reserves the right to close and keep locked all entrance and exit
doors of the Project except during the Project's normal hours of business as
defined in section 11.4 of the Lease. Tenant, its employees and agents must be
sure that the doors to the Project are securely closed and locked when leaving
the Premises if it is after the normal hours of business of the Project.
Tenant, its employees, agents or any other persons entering or leaving the
Project at any time when it is so locked, or any time when it is considered to
be after normal business hours for the Project, may be required to sign the
Project register. Access to the Project may be refused unless the person
seeking access has proper identification or has a previously received
authorization for access to the Project. Landlord and its agents shall in no
case be liable for damages for any error with regard to the admission to or
exclusion from the Project of any person. In case of invasion, mob, riot,
public excitement, or other commotion, Landlord reserves the right to prevent
access to the Project during the continuance thereof by any means it deems
appropriate for the safety and protection of life and property.
4. Landlord reserves the right, in Landlord's sole and absolute discretion, to
close or limit access to the Project and/or the Premises, from time to time, due
to the failure of utilities, due to damage to the Project and/or the Premises,
to ensure the safety of persons or property or due to government order or
directive, and Tenant agrees to immediately comply with any such decision by
Landlord. If Landlord closes or limits access to the Project and/or the
Premises for the reasons described above, Landlord's actions shall not
constitute a breach of the Lease.
5. No furniture, freight or equipment of any kind shall be brought into the
Project without Landlord's prior authorization. Tenant shall only move in and
out of the Premises at times designated by Landlord, in Landlord's reasonable
discretion (e.g., Landlord could require that all moves in and out of the
Premises only occur on weekends or on weekdays between 5:00 p.m. and 11:00
p.m.). All moves in and out of the Premises shall be scheduled with Landlord in
advance, on a first come, first served basis. All property shall be moved in
and out of the Premises using the freight elevator. Landlord shall have the
right, in its sole discretion, to permit only one tenant to move in or out of
the Building at a time. When moving equipment, furniture and other items into
and out of the Premises, Tenant shall take whatever precautions Landlord
designates to protect the Project from damage (e.g., placing plastic or other
protective material on carpets in the common areas and the Premises). Landlord
shall have the right to prescribe the weight, size and position of all safes and
other heavy property brought into the Project and also the times and manner of
moving the same in and out of the Project. Safes and other heavy objects shall,
if considered necessary by Landlord, stand on supports of such thickness as is
necessary to properly distribute the weight, and Tenant shall be solely
responsible for the cost of installing all supports. Landlord will not be
responsible for loss of or damage to any such safe or property in any case. Any
damage to any part of the Project, its contents, occupants or visitors by moving
or maintaining any such safe or other property shall be the sole responsibility
and expense of Tenant.
6. The requirements of Tenant will be attended to only upon application at the
management office for the Project or at such office location designated by
Landlord. Tenant shall not ask employees of Landlord to do anything outside
their regular duties without special authorization from Landlord.
7. Tenant shall not disturb, solicit, or canvass any occupant of the Project
and shall cooperate with Landlord and its agents to prevent the same. Tenant,
its employees and agents shall not loiter in or on the entrances, corridors,
sidewalks, lobbies, halls, stairways, elevators, or any Common Areas for the
purpose of smoking tobacco products or for any other purpose, nor in any way
obstruct such areas, and shall use them only as a means of ingress and egress
for the Premises. Smoking shall not be permitted in the Common Areas.
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8. The toilet rooms, urinals and wash bowls shall not be used for any purpose
other than that for which they were constructed, and no foreign substance of any
kind whatsoever shall be thrown therein. The expense of any breakage, stoppage
or damage resulting from the violation of this rule shall be borne by the tenant
who, or whose employees or agents, shall have caused it.
9. Except for vending machines intended for the sole use of Tenant's employees
and invitees, no vending machine or machines other than fractional horsepower
office machines shall be installed, maintained or operated upon the Premises
without the written consent of Landlord. All vendors or other persons visiting
the Premises shall be subject to the reasonable control of Landlord. Tenant
shall not permit its vendors or other persons visiting the Premises to solicit
other tenants of the Project.
10. Tenant shall not use or keep in or on the Premises or the Project any
kerosene, gasoline or other inflammable or combustible fluid or material.
Tenant shall not bring into or keep within the Premises or the Project any
animals, birds, bicycles or other vehicles.
11. Tenant shall not use, keep or permit to be used or kept, any foul or
noxious gas or substance in or on the Premises, or permit or allow the Premises
to be occupied or used in a manner offensive or objectionable to Landlord or
other occupants of the Project by reason of noise, odors, or vibrations, or to
otherwise interfere in any way with the use of the Project by other tenants.
12. No cooking shall be done or permitted on the Premises, nor shall the
Premises be used for the storage of merchandise, for loading or for any
improper, objectionable or immoral purposes. Notwithstanding the foregoing,
Underwriters' Laboratory approved equipment and microwave ovens may be used in
the Premises for heating food and brewing coffee, tea, hot chocolate and similar
beverages for employees and visitors of Tenant, provided that such use is in
accordance with all applicable federal, state and city laws, codes, ordinances,
rules and regulations; and provided further that such cooking does not result in
odors escaping from the Premises.
13. Landlord shall have the right to approve where and how telephone wires are
to be introduced to the Premises. No boring or cutting for wires shall be
allowed without the consent of Landlord. The location of telephone call boxes
and other office equipment affixed to the Premises shall be subject to the
approval of Landlord. Tenant shall not mark, drive nails or screws, or drill
into the partitions, woodwork or plaster contained in the Premises or in any way
deface the Premises or any part thereof without Landlord's prior written
consent. Tenant shall not install any radio or television antenna, satellite
dish, loudspeaker or other device on the roof or exterior walls of the Project.
Tenant shall not interfere with broadcasting or reception from or in the Project
or elsewhere.
14. Landlord reserves the right to exclude or expel from the Project any person
who, in the judgment of Landlord, is intoxicated or under the influence of
liquor or drugs, or who shall in any manner do any act in violation of any of
these Rules and Regulations.
15. Tenant shall not waste electricity, water or air conditioning and agrees to
cooperate fully with Landlord to ensure the most effective operation of the
Project's heating and air conditioning system, and shall refrain from attempting
to adjust any controls. Tenant shall not without the prior written consent of
Landlord use any method of heating or air conditioning other than that supplied
by Landlord. Tenant shall not use electric fans or space heaters in the
Premises.
16. Tenant shall store all its trash and garbage within the interior of the
Premises. No material shall be placed in the trash boxes or receptacles if such
material is of such nature that it may not be disposed of in the ordinary and
customary manner of removing and disposing of trash in the vicinity of the
Project without violation of any law or ordinance governing such disposal. All
trash, garbage and refuse disposal shall be made only through entry-ways and
elevators provided for such purposes at such times as Landlord shall designate.
17. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
18. No awnings or other projection shall be attached to the outside walls or
windows of the Project by Tenant. No curtains, blinds, shades or screens shall
be attached to or hung in any window or door of the Premises without the prior
written consent of Landlord. Landlord shall have the right to require Tenant to
use Landlord's standard curtains or window coverings. Tenant shall not place
any signs in the windows of the Premises or the Project. All electrical ceiling
fixtures hung in the Premises must be fluorescent and/or of a quality, type,
design and bulb color approved by Landlord. Tenant shall abide by Landlord's
regulations concerning the opening and closing of window coverings which are
attached to the windows in the Premises. The skylights, windows, and doors that
reflect or admit light and air into the
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halls, passageways or other public places in the Project shall not be covered or
obstructed by Tenant, nor shall any bottles, parcels or other articles be placed
on the windowsills.
19. Tenant shall not employ any person or persons other than the janitor of
Landlord for the purpose of cleaning the Premises unless otherwise agreed to in
writing by Landlord. Except with the prior written consent of Landlord, no
person or persons other than those approved by Landlord shall be permitted to
enter the Project for the purpose of cleaning same. Landlord shall in no way be
responsible to Tenant for any loss of property on the Premises, however
occurring, or for any damage done to the effects of Tenant or any of its
employees or other persons by the janitor of Landlord. Landlord shall not be
obligated to notify Tenant of the times at which the janitorial staff will enter
the Premises, and Tenant hereby authorizes the janitorial staff to enter the
Premises at any time, without notice. Janitor service shall include ordinary
dusting and cleaning by the janitor assigned to such work and shall not include
cleaning of carpets or rugs, except normal vacuuming, or moving of furniture and
other special services. Window cleaning shall be done only by Landlord at
reasonable intervals and as Landlord deems necessary.
20. Tenant acknowledges that the local fire department has previously required
Landlord to participate in a fire and emergency preparedness program or may
require Landlord and/or Tenant to participate in such a program in the future.
Tenant agrees to take all actions necessary to comply with the requirements of
such a program including, but not limited to, designating certain employees as
"fire wardens" and requiring them to attend any necessary classes and meetings
and to perform any required functions.
21. Tenant and its employees shall comply with all federal, state and local
recycling and/or resource conversation laws and shall take all actions requested
by Landlord in order to comply with such laws. Tenant and its employees shall
participate in any recycling or resource conservation program implemented by
Landlord, at Tenant's sole expense.
PARKING RULES
-------------
1. Parking areas shall be used only for parking by vehicles no longer than
full size, passenger automobiles. Tenant and its employees shall park
automobiles within the lines of the parking spaces.
2. Tenant shall not permit or allow any vehicles that belong to or are
controlled by Tenant or Tenant's employees, suppliers, shippers, customers, or
invitees to be loaded, unloaded, or parked in areas other than those designated
by Landlord for such activities. Users of the parking area will obey all posted
signs and park only in the areas designated for vehicle parking.
3. Parking stickers, parking cards and other identification devices shall be
the property of Landlord and shall be returned to Landlord by the holder thereof
upon termination of the holder's parking privileges. Landlord may require
Tenant and each of its employees to give Landlord a deposit when a parking card
or other parking device is issued. Landlord shall not be obligated to return
the deposit unless and until the parking card or other device is returned to
Landlord. Tenant will pay such replacement charges as is reasonably established
by Landlord for the loss of such devices. Loss or theft of parking
identification stickers or devices from automobiles must be reported to the
parking operator immediately. Any parking identification stickers or devices
reported lost or stolen found on any unauthorized car will be confiscated and
the illegal holder will be subject to prosecution.
4. Landlord reserves the right to relocate all or a part of parking spaces
within the parking area and/or to reasonably adjacent off site locations(s), and
to allocate them between compact and standard size and tandem spaces, as long as
the same complies with applicable laws, ordinances and regulations.
5. Unless otherwise instructed, every person using the parking area is
required to park and lock his own vehicle. Landlord will not be responsible for
any damage to vehicles, injury to persons or loss of property, all of which
risks are assumed by the party using the parking area.
6. Validation of visitor parking, if established, will be permissible only by
such method or methods as Landlord may establish at rates determined by
Landlord, in Landlord's sole discretion. Only persons visiting Tenant at the
Premises shall be permitted by Tenant to use the Project's visitor parking
facilities.
7. The maintenance, washing, waxing or cleaning of vehicles in the parking
structure or Common Areas is prohibited.
8. Tenant shall be responsible for seeing that all of its employees, agents
and invitees comply with the applicable parking rules, regulations, laws and
agreements. Parking area managers or attendants, if any, are not authorized to
make
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or allow any exceptions to these Parking Rules and Regulations. Landlord
reserves the right to terminate parking rights for any person or entity that
willfully refuses to comply with these rules and regulations.
9. Every driver is required to park his own car. Tenant agrees that all
responsibility for damage to cars or the theft of or from cars is assumed by the
driver, and further agrees that Tenant will hold Landlord harmless for any such
damages or theft.
10. No vehicles shall be parked in the parking garage overnight. The parking
garage shall only be used for daily parking and no vehicle or other property
shall be stored in a parking space.
11. Any vehicle parked by Tenant, its employees, contractors or visitors in a
reserved parking space or in any area of the parking area that is not designated
for the parking of such a vehicle may, at Landlord's option, and without notice
or demand, be towed away by any towing company selected by Landlord, and the
cost of such towing shall be paid for by Tenant and/or the driver of said
vehicle.
12. At Landlord's request, Tenant shall provide Landlord with a list which
includes the name of each person using the parking facilities based on Tenant's
parking rights under this Lease and the license plate number of the vehicle
being used by that person. Tenant shall provide Landlord with an updated list
within five (5) days after any part of the list becomes inaccurate.
Landlord reserves the right at any time to change or rescind any one
or more of these Rules and Regulations, or to make such other and further
reasonable Rules and Regulations as in Landlord's judgment may from time to time
be necessary for the management, safety, care and cleanliness of the Project,
and for the preservation of good order therein, as well as for the convenience
of other occupants and tenants therein. Landlord may waive any one or more of
these Rules and Regulations for the benefit of any particular tenant, but no
such waiver by Landlord shall be construed as a waiver of such Rules and
Regulations in favor of any other tenant, nor prevent Landlord from thereafter
enforcing any such Rules or Regulations against any or all tenants of the
Project. Tenant shall be deemed to have read these Rules and Regulations and to
have agreed to abide by them as a condition of its occupancy of the Premises.
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EXHIBIT D
LETTER OF CREDIT
THE REALTY ASSOCIATES FUND IV, L.P.
c/o TA Associates Realty
28 State Street, 10/th/ Floor
Boston, Massachusetts 02110
Ladies and Gentlemen:
By order of our client, Noosh, Inc., we have established our irrevocable
standby Letter of Credit #_________ in your favor for a sum or sums not to
exceed $62,000.00 in United States currency, effective immediately for a term of
one (1) year.
We shall make payment hereunder against presentation of your sight draft
drawn on us bearing the clause "drawn under __________ Bank, Letter of Credit
#_________", signed by an authorized officer or agent and accompanied by a
statement signed by an authorized officer or agent reading as follows:
"The amount of this draft constitutes funds due us from Noosh, Inc. in
connection with a default under a certain Lease dated September ___, 1999,
between THE REALTY ASSOCIATES FUND IV, L.P. and NOOSH, INC., relating to
premises situated at 75 SECOND AVENUE, NEEDHAM, MASSACHUSETTS 02192."
It is a condition of this Letter of Credit that it shall be deemed
automatically extended without amendment for an additional period of one (1)
year from the present or any future expiration date hereof unless at least
thirty (30) days prior to any such date we shall notify you in writing by
certified mail that we elect not to consider this Letter of Credit renewed for
any such additional period. Upon receipt by you of such notice of non- renewal,
you may draw hereunder your sight draft(s) on ourselves signed by an authorized
officer or agent and accompanied by a statement signed by an authorized officer
or agent reading as follows:
"We have received notice of non-renewal of Letter of Credit #_____________
from _____________ Bank and the applicant has failed to provide us with a
substitute Letter of Credit not less than thirty (30) days prior to the
purported expiration date of the Letter of Credit."
We hereby agree with you that drafts drawn under and in compliance with the
terms of this Letter of Credit will by duly honored upon presentation and
delivery thereof to the Bank's ____ Department. This Letter of Credit sets
forth in full our undertaking, and such undertaking shall not in any way be
modified, amended, amplified or limited by reference to any document, instrument
or agreement referred to herein and any such reference shall not be deemed to
incorporate herein by reference any document, instrument or agreement.
This Letter of Credit is subject to the Uniform Customs and Practices for
Documentary Credits, 1993 revision, ICC Publication No. 500. Partial drawings
shall be permitted under this Letter of Credit.
This Letter of Credit is transferable in whole or in part by the
beneficiary to any successor or assign of the beneficiary. This Letter of
Credit may be transferred more than once.
Very truly yours,
________________